AMENDED AND RESTATED
CREDIT AGREEMENT
by and among
CONSOLTEX GROUP INC.,
CONSOLTEX INC.,
CONSOLTEX MEXICO, S.A. de C.V.,
CONSOLTEX (USA) INC.,
THE BALSON-HERCULES GROUP LTD.,
LINQ INDUSTRIAL FABRICS, INC.,
as Borrowers,
NATIONAL BANK OF CANADA
and
BANK OF AMERICA, N.A.
as Agents and as Lenders,
and
BANC OF AMERICA SECURITIES LLC
as Lead Arranger and Lead Book Manager
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
October 25, 1999
Name: BA CONSOLTEX 1999 A&R CREDIT AGREEMENT
Doc No: 304785.17
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 25,
1999 (as amended, restated or supplemented and in effect from time to time,
the "Agreement"), is made by and among each of CONSOLTEX GROUP INC., a
corporation incorporated under the laws of Canada having its principal
place of business on the date hereof in Ville Saint-Laurent, Qubec,
Canada ("Consoltex Group"), CONSOLTEX INC., a corporation incorporated
under the laws of Qubec having its principal place of business on the
date hereof in ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ("Consoltex"),
CONSOLTEX (USA) INC., a New York corporation having its principal place of
business on the date hereof in New York, New York, U.S.A. ("Consoltex
USA"), THE BALSON-HERCULES GROUP LTD., a Rhode Island corporation having
its principal place of business on the date hereof in New York, New York,
U.S.A. ("Balson-Hercules"), LINQ INDUSTRIAL FABRICS, INC., a Delaware
corporation having its principal place of business on the date hereof in
Summerville, South Carolina, U.S.A. ("LINQ"), and CONSOLTEX MEXICO, S.A. DE
C.V., a Mexican corporation having its principal place of business on the
date hereof in Col. ▇▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇, ▇▇▇▇▇▇, D.F. ("Consoltex Mexico")
(Consoltex Group, Consoltex, Consoltex USA, Balson-Hercules, LINQ and
Consoltex Mexico are collectively referred to herein as the "Borrowers" and
individually referred to as a "Borrower");
CONSOLTEX INTERNATIONAL, INC., a New York corporation having its principal
place of business in New York, New York ("Consoltex International"),
RAFYTEK, S.A. DE C.V., a Mexican corporation ("Rafytek"), RAFYTICA, S.A., a
Costa Rican corporation ("Rafytica"), ▇▇▇▇ ▇▇▇, S.A. DE C.V., a Mexican
corporation ("▇▇▇▇ ▇▇▇"), MARINO TECHNOLOGIES INCORPORATED, a Delaware
corporation having its principal place of business on the date hereof in
Miami, Florida ("Marino"), WALPOLE INC., a New Jersey corporation having
its principal place of business on the date hereof in Westhampton, New
Jersey ("Walpole"), ROYALTON MEXICANA S.A. DE C.V., a Mexican corporation
having its principal place of business on the date hereof in Mexico City,
Mexico ("Royalton"), VEST COMPANY VESTCO S.A. DE C.V., a Mexican
corporation having its principal place of business on the date hereof in
Mexico City, Mexico ("Vestco") and MARINO TECHNOLOGIES DE MEXICO, S.A. DE
C.V. , a Mexican corporation having its principal place of business on the
date hereof in San ▇▇▇▇ Potosi, Mexico ("Marino Mexico") (the Borrowers,
Consoltex International, Rafytek, Rafytica, ▇▇▇▇ ▇▇▇, 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 Montral, Qubec, Canada, in its capacity as a
Lender ("NBC"), 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, U.S.A., 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 this Agreement pursuant to SECTION 3.9 OR 14.1 (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 herein) (in such capacity, or any successor agent appointed in
accordance with the terms of SECTION 13.9, 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 herein) and the Term B Loan Facility Lenders (as defined herein)
(in such capacity, or any successor agent appointed in accordance with the
terms of SECTION 13.9, the "US Agent" and together with the Canadian Agent,
the "Agents").
W I T N E S S E T H:
WHEREAS, the Borrowers, the Agents and the Lenders are party to that
certain Credit Agreement dated as of March 19, 1996, as amended by
Amendment No. 1 to Credit Agreement dated as of February 14, 1997, by
Amendment No. 2 to Credit Agreement dated as of December 12, 1997, by that
certain letter agreement dated as of March 16, 1998, by Amendment No. 4 to
Credit Agreement dated as of June 8, 1998, by Amendment No. 5 to Credit
Agreement dated as of September 29, 1998, by Amendment No. 6 to Credit
Agreement dated as of December 31, 1998, by Amendment No. 7 to Credit
Agreement dated as of May 17, 1999 and by Amendment No. 8 to Credit
Agreement dated as of August 2, 1999 (as heretofore and from time to time
hereafter amended, supplemented or restated, the "Existing Credit
Agreement"), pursuant to which the Lenders have agreed to make available to
the Borrowers (a) two term loan facilities in the aggregate principal
amount outstanding as of October 1, 1999 of US $13,750,000, the proceeds of
which were used when advanced to refinance and cancel existing term
indebtedness and working capital facilities of the Borrowers, (b) a third
term loan facility in the principal amount of US $25,000,000, the proceeds
of were used when advanced principally to acquire Marino Technologies, Inc.
and (c) two revolving credit facilities of up to US $57,500,000 in
aggregate maximum principal amount at any time outstanding, the proceeds of
which were used when advanced and are to be used (i) in part to refinance
and cancel existing term indebtedness and working capital facilities of the
Borrowers, (ii) to pay certain fees and expenses in connection with such
facilities and such refinancing and (iii) for other general corporate
purposes including but not limited to permitted investments in
subsidiaries, Capital Expenditures, working capital investment and debt
repayment and which included letter of credit availability of up to US
$15,000,000 in aggregate stated amount outstanding at any time for the
issuance of commercial and standby letters of credit; and
WHEREAS, the Borrowers have requested that the Lenders amend and
restate the Existing Credit Agreement and increase the commitment amount
applicable to the Term B Loan Facility by US $18,000,000 to US $43,000,000,
which increase shall be used by Consoltex USA to make an advance or
contribution to Marino, which shall use such proceeds to finance the Atlas
Acquisition, for working capital and for other lawful purposes; and
WHEREAS, the Lenders and the Agents are willing to amend and restate
the Existing Credit Agreement and to continue to make certain credit
facilities available to the Borrowers upon the terms and conditions set
forth herein;
NOW, THEREFORE, the Borrowers, the Lenders and the Agents hereby agree
that the Existing Credit Agreement is amended and restated in its entirety
as follows:
ARTICLE
DEFINITIONS AND TERMS
.. DEFINITIONS. For the purposes of this Agreement, in addition to
the definitions set forth above, the following terms shall have the
respective meanings set forth below:
"Acceleration Event" means that (i) an Event of Default has
occurred and is continuing and (ii) all of the Obligations have become
due and payable in accordance with the terms of SECTION 12.1(A).
"Accounts Receivable" means all Accounts of the Borrowers
(excluding Consoltex Mexico) as defined in the Security Agreement.
"Acquisition" means the acquisition of (i) a controlling equity
interest in another Person (including the purchase of an option,
warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder
thereof), whether by purchase of such equity interest or upon exercise
of an option or warrant for, or conversion of securities into, such
equity interest, or (ii) assets of another Person which constitute all
or substantially all of the assets of such Person or substantially all
of the lines of business conducted by such Person.
"Adjusted Consolidated Total Debt" means, as of any date on which
the amount thereof is to be determined, the sum (without duplication)
of (i) Consolidated Funded Indebtedness as of such date, plus (ii) all
Outstandings under the Term Loan Facilities and the Term Loan B
Facility as of such date, plus (iii) the aggregate outstanding
principal amount of Subordinated Debt as of such date, plus (iv) the
aggregate amount as of such date of all amounts advanced to a Borrower
as a loan against, or comprising the purchase price on a non-recourse
basis for, accounts receivable then outstanding and all amounts issued
by a Borrower or special purpose subsidiary thereof and then
outstanding under asset-based securitizations, which loans, sales and
securitizations are transacted in the ordinary course of business of
the Borrowers, and (v) minus the aggregate amount of cash on hand of
Consoltex Group and its Subsidiaries most recently reported to each
Agent and each Lender in form and substance, and pursuant to internal
reporting systems, reasonably acceptable to the Required Lenders.
"Advance" means the borrowing under a Facility.
"Affiliate" means any Person (i) which directly or indirectly
controls, or is controlled by, or is under common control with, any
Borrower; or (ii) which beneficially owns or holds 10% or more of any
class of the outstanding voting stock (or in the case of a Person
which is not a corporation, 10% or more of the equity interest) of any
Borrower; or 10% or more of any class of the outstanding voting stock
(or in the case of a Person which is not a corporation, 10% or more of
the equity interest) of which is beneficially owned or held by any
Borrower. The term "controls" (including with correlative meanings
the terms "controlled by" and under "common control with") means the
possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether
through ownership of voting stock, by contract or otherwise.
"Agents" has the meaning given such term in the preamble hereto.
"AIP" means AIP/CGI NB Acquisition Corp, a corporation
incorporated under the laws of New Brunswick and a wholly owned
subsidiary of American Industrial Partners Capital Fund II, L.P.
"AIP Equity Contribution" means that equity contribution (whether
accomplished by the purchase of newly issued shares of capital stock
or otherwise) of up to US$10,000,000 made by AIP into Consoltex
Group.
"AIP Option to Purchase" means the provision in the Stockholders
Agreement providing AIP with an option to purchase all, or not less
than a majority of, the issued and outstanding multiple voting shares
in the capital of Consoltex Group.
"AIP Tender" means that offer to purchase all of the subordinate
voting shares of Consoltex Group by AIP for CAN$5.60 cash per share as
set forth in more detail in that certain Offer to Purchase dated as of
September 24, 1999, as amended from time to time thereafter.
"Alternate Code" has the meaning given such term in SECTION
1.2(B).
"Applicable Outstanding Percentage" means, with respect to any
Lender at any date of determination, a fraction, the numerator of
which shall be the sum of all Outstandings owing to such Lender under
all the Facilities at such date and the denominator of which shall be
the total of all the Outstandings at such date.
"Applicable Commitment Percentage" means, with respect to any Lender
under any certain Facility (other than the Canadian Swing Line
Facility) on any date, a fraction, the numerator of which shall be
such Lender's Commitment, if any, under such Facility on such date and
the denominator of which shall be the sum of all the Lenders'
Commitments under such Facility on such date; which Applicable
Commitment Percentages for each Lender (other than the Canadian Swing
Line Facility Lender) as of the Closing Date are as set forth in
EXHIBIT A; PROVIDED that the Applicable Commitment Percentages of each
Lender shall be increased or decreased to reflect any assignments to
or by such Lender effected in accordance with SECTION 3.9 OR 14.1 and
any calculation thereof shall reflect any reduction of the Commitments
under such Facility pursuant to SECTION 2.4, 2.5 OR 3.5, as
applicable. For purposes of determining any Canadian Revolving Credit
Facility Lender's obligation to purchase Participations in any
Canadian Swing Line Loan, such Lender's "Applicable Commitment
Percentage" on any date with respect to any Canadian Swing Line Loan
or the Canadian Swing Line Facility shall be equal to its Applicable
Commitment Percentage as determined with respect to the Canadian
Revolving Credit Facility. For all other purposes of, and with
respect to, any other provision of this Agreement or any other Loan
Document, a Canadian Revolving Credit Facility Lender's "Applicable
Commitment Percentage" on any date with respect to any Canadian Swing
Line Loan or the Canadian Swing Line Facility shall be (a) except with
respect to the Canadian Swing Line Facility Lender, equal to a
fraction, the numerator of which shall be the outstanding principal
amount of such Lender's Participation in such Loan or such Facility it
has purchased from the Canadian Swing Line Facility Lender in
accordance with the terms of SECTION 3.2(C) hereof and the denominator
of which shall be the outstanding principal amount of such Loan or the
Outstandings under such Facility, respectively, and (b) with respect
to the Canadian Swing Line Facility Lender, equal to a fraction, the
numerator of which is the outstanding principal amount of such Loan or
Outstandings under such Facility, respectively, in which
Participations have not been purchased in accordance with the terms of
SECTION 3.2(C) hereof and the denominator of which shall be the
outstanding principal amount of such Loan or the Outstandings under
such Facility, respectively.
"Applicable Margin" means, at any time and from time to time, a
percent per annum equal to the percentage set forth below:
Applicable
MARGIN
Eurodollar Rate
Loans and
Bankers'
TYPE OF LOAN BASE RATE LOANS
ACCEPTANCES
Term Loans and Revolving 1.50% 2.75%
Loans (excluding Term B
Loans)
Term B Loans 1.75% 3.00%.
"Applicable Total Commitment Percentage" means, with respect to
any Lender on any date, a fraction, the numerator of which shall be
such Lender's aggregate Commitments under all the Facilities on such
date and the denominator of which shall be the sum of all the Lenders'
Commitments under all the Facilities on such date; PROVIDED that the
Applicable Total Commitment Percentage of each Lender shall be
increased or decreased to reflect any assignments to or by such Lender
effected in accordance with SECTION 3.9 OR 14.1 and any calculation
thereof shall reflect any reduction of the Commitments under any
Facility pursuant to SECTION 2.4, 2.5 OR 3.5, as applicable.
"Applications for Letters of Credit" means, collectively, the
Applications for Letters of Credit, or similar documentation, executed
by any Borrower under a Revolving Credit Facility from time to time
and delivered to the applicable Issuing Bank to support the issuance
of Letters of Credit.
"Assignment and Acceptance" shall mean an Assignment and Acceptance in
substantially the form of EXHIBIT B (with blanks appropriately filled
in) delivered to the Agents in connection with an assignment of all or
a portion of a Lender's interest under this Agreement pursuant to
SECTION 14.1.
"Assuming Lender" has the meaning given such term in SECTION
3.9(C).
"Atlas" means, collectively, Atlas Bag, Inc. and Atlas Bag Texas,
Inc., the assets of which are to be acquired by the Borrower or a
Subsidiary pursuant to the Atlas Acquisition.
"Atlas Acquisition" has the meaning given to such term in SECTION
11.2.
"Authorized Representative" means any of the President or any
Vice President of Consoltex Group or, with respect to financial
matters, the chief financial officer of Consoltex Group, or any other
Person expressly designated by the Board of Directors of Consoltex
Group (or the appropriate committee thereof) as an Authorized
Representative, as set forth from time to time in a certificate
delivered to the Agents in substantially the form of EXHIBIT C.
"Balson-Hercules" has the meaning given such term in the preamble
hereto.
"Bank of America" has the meaning given such term in the preamble
hereto.
"Bankers' Acceptances" means (i) with respect to any Canadian
Facilities Lender (other than a Non-BA Lender), a non-interest bearing
▇▇▇▇ of exchange drawn by Consoltex or Consoltex Group, on the
standard form used by the Canadian Facility Lender accepting it, at
its Lending Office, or (ii) with respect to a Non-BA Lender, a
Discount Note payable to the order of such Non-BA Lender, both the
▇▇▇▇ of exchange and the Discount Note to be denominated in Canadian
Dollars and issued under a Canadian Facility.
"Bankers' Acceptances Segment" means a Segment under a Canadian
Facility utilized by way of Bankers' Acceptances.
"Base Rate" means, as applicable:
(i) with regard to Advances made in Canadian Dollars under
either of the Canadian Facilities, the Applicable Margin in
effect from time to time plus the greater, for each day, of:
(a) the Reference Rate then in force; or
(b) the annual rate of interest which is the rate determined
as being the arithmetic average (rounded upwards, if
necessary, to the nearest 0.01%) of the discount rates for
Canadian Dollar bankers' acceptances having a maturity date
of thirty (30) days appearing on the CDOR Page of the
"Reuters Screen" (as defined in the 1991 International Swap
and Derivatives Association Inc. definitions, as amended or
modified from time to time) at 10:00 a.m. (Montral time)
on such day or, if such day is not a Business Day, on the
preceding Business Day or if such rates do not appear on the
CDOR Page of the Reuters Screen as contemplated on any such
day, then the rate shall be calculated as the arithmetic
average of the discount rate for Canadian Dollar bankers'
acceptances having a maturity date of 30 days quoted for
such day by three brokers of good standing selected by the
Canadian Agent, plus 1.25%;
(ii) with regard to Advances made in US Dollars under either
of the Canadian Facilities, the Applicable Margin in effect from
time to time plus the greater, for each day, of (a) the Reference
Rate then in effect or (b) the Federal Funds Effective Rate on
such day plus 1.25%;
(iii) with regard to Advances made under either of the US
Facilities, the per annum rate of interest equal to the
Applicable Margin in effect from time to time plus the greater,
for each day, of (a) the Prime Rate then in effect or (b) the
Federal Funds Effective Rate on such day plus 0.50%: and
(iv) with regard to Advances made under the Term B Loan
Facility, the per annum rate of interest equal to 1.75% plus the
greater, for each day, of (a) the Prime Rate then in effect or
(b) the Federal Funds Effective Rate on such day plus 0.50%
Any change in the Base Rate resulting from a change in the Prime
Rate, the Reference Rate or the Federal Funds Effective Rate shall
become effective as of 12:01 A.M. on the Business Day on which each
such change occurs.
The Base Rate is a reference rate used by the Agents in
determining interest rates on certain loans and is not intended to be
the best or lowest rate of interest charged on any extension of credit
to any debtor.
"Base Rate Loan" means any Advance or portion of an Advance for
which the rate of interest is determined by reference to the
applicable Base Rate.
"Base Rate Refunding Loan" means a Base Rate Loan made under a
Revolving Credit Facility to satisfy Reimbursement Obligations arising
from a drawing under a Letter of Credit, which Base Rate Refunding
Loan shall be treated as a Revolving Credit Loan under such Facility
for all purposes of this Agreement.
"Base Rate Segment" means a portion of the principal amount
outstanding under a Facility for which the rate of interest is
determined by reference to the applicable Base Rate.
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
"Borrower" and "Borrowers" have the meanings given such terms in
the preamble hereto.
"Borrowers' Canadian Account" means , as the context may require,
(i) demand deposit account number ▇▇-▇▇▇-▇▇ with the Canadian Agent
with respect to Consoltex Group for Canadian Dollars, (ii) demand
deposit account number ▇▇-▇▇▇-▇▇ with the Canadian Agent with respect
to Consoltex Group for US Dollars, (iii) demand deposit account number
▇▇-▇▇▇-▇▇ with the Canadian Agent with respect to Consoltex for
Canadian Dollars, or (iv) demand deposit account number ▇▇-▇▇▇-▇▇ with
the Canadian Agent with respect to Consoltex for US Dollars, as
applicable, and in each instance includes any successor account with
the Canadian Agent, which may be maintained at one or more offices of
the Canadian Agent or an agent of the Canadian Agent, for the
Borrowers under the Canadian Facilities, as is agreed in writing from
time to time between the Canadian Agent and such Borrowers.
"Borrowers' US Account" means, as the context may require, (i)
demand deposit account number 0102333805 with respect to LINQ, (ii)
demand deposit account number 3750636802 with respect to Balson-
Hercules, (iii) demand deposit account number 3750636792 with respect
to Consoltex USA or (iv) demand deposit account number 759198548 with
respect to Consoltex Mexico, as applicable, and in each instance
including any successor account with the US Agent, which may be
maintained at one or more offices of the US Agent or an agent of the
US Agent, for such Borrowers under the US Facilities, as is agreed in
writing from time to time between the US Agent and such Borrowers.
"Borrowing Base" means, as of any date of determination thereof,
the sum of (i) all Eligible Receivables, as set forth in the most
recent Borrowing Base Certificate delivered pursuant to SECTION
10.1(G), multiplied by 80%, (ii) the aggregate amount of all payment
rights to amounts due from factors of Accounts Receivable in
transactions and pursuant to agreements not in violation of SECTION
11.5(P) hereof in which the US Collateral Agent shall have a first
priority perfected security interest pursuant to the Security
Instruments free of any Lien other than such security interest and
Statutory Remittal Liens, multiplied by 80%, (iii) the product of the
aggregate stated amount as of such date of all commercial letters of
credit issued for the account of the Borrowers in connection with the
purchase of raw materials, which raw materials have not been received
as Inventory as of such date, multiplied by 50% and (iv) the lesser of
(A) US $30,000,000 or (B) all Eligible Inventory, as set forth in the
most recent Borrowing Base Certificate delivered pursuant to SECTION
10.1(G), multiplied by 50%.
"Borrowing Base Availability" means, on any date of
determination, (a) the Borrowing Base on such date LESS (b) the sum of
(i) the aggregate principal amount of all Loans outstanding, and the
aggregate face amount of all Bankers' Acceptances outstanding, under
both Revolving Credit Facilities and the Canadian Swing Line Facility
on such date, (ii) the aggregate undrawn amount of all Letters of
Credit outstanding under both Letter of Credit Facilities on such date
and (iii) the aggregate Reimbursement Obligations owing under both
Letter of Credit Facilities on such date.
"Borrowing Base Certificate" means a certificate substantially in
the form of EXHIBIT D prepared and delivered by an Authorized
Representative to the Agents from time to time in accordance with
SECTION 10.1(G).
"Business Day" means, (i) with respect to any Base Rate Loan, Banker's
Acceptance or Canadian Swing Line Loans, any day which is not a
Saturday, Sunday or a day on which banks in the Province of Qubec
and in the States of New York and North Carolina are authorized or
obligated by law, executive order or governmental decree to be closed
and (ii) with respect to any Eurodollar Rate Loan, any day which is a
Business Day under clause (i) above, and on which the relevant
international financial markets are open for the transaction of
business contemplated by this Agreement in London, England, Toronto,
Canada, Montral, Canada, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇.
"Canadian Agent" has the meaning given such term in the preamble
hereto.
"Canadian Benefit Law" means any applicable Canadian federal or
provincial statute, law, regulation, order or decree having the force
of law regulating, relating to or imposing liability or standards of
conduct concerning any Canadian Employee Pension Plan.
"Canadian Collateral Trustee" means ▇▇▇▇▇▇▇▇▇▇ Trust Inc., a
trust company, or any successor thereto, as collateral trustee
pursuant to certain Security Instruments with respect to Collateral
located in Canada or the Canadian Agent acting in such capacity.
"Canadian Dollars" and the symbol "CAN $" means dollars
constituting legal tender for the payment of public and private debts
in Canada.
"Canadian Employee Pension Plan" means any employee benefit plan
registered as a pension plan in Canada under Canadian Benefit Law and
that is maintained by Consoltex or Consoltex Group or with respect to
which Consoltex or Consoltex Group could incur a liability.
"Canadian Facilities Lenders" means, collectively, the Canadian
Term Loan Facility Lenders, the Canadian Revolving Credit Facility
Lenders and the Canadian Swing Line Facility Lender.
"Canadian Facility" means any of the Canadian Term Loan Facility,
the Canadian Revolving Credit Facility or the Canadian Swing Line
Facility.
"Canadian Issuing Bank" means initially NBC and thereafter any
Canadian Revolving Credit Facility Lender which is a successor to NBC
as issuer of Canadian Letters of Credit pursuant to SECTION 14.1.
"Canadian Letter of Credit" means a standby or commercial letter
of credit issued under the Canadian Revolving Credit Facility by the
Canadian Issuing Bank for the account of an applicable Facility
Borrower in favor of a Person advancing credit to or securing an
obligation on behalf of such Facility Borrower.
"Canadian Letter of Credit Facility" means the facility described in
ARTICLE IV hereof providing for the issuance by the Canadian Issuing
Bank for the account of the applicable Facility Borrowers of Canadian
Letters of Credit in an aggregate stated amount at any time
outstanding not exceeding US $10,000,000.
"Canadian Revolving Credit Facility" means the facility described
in ARTICLE III hereof providing for Advances in Canadian Dollars or US
Dollars and for Bankers' Acceptances, in favor or at the request of an
applicable Facility Borrower by the Canadian Revolving Credit Facility
Lenders in the aggregate principal amount at any time outstanding not
exceeding the Total Commitment applicable to such Facility at such
time.
"Canadian Revolving Credit Facility Lenders" means, collectively,
each Lender identified on EXHIBIT A hereto as being a Lender having a
Commitment under the Canadian Revolving Credit Facility and each other
financial institution that executes and delivers an Assignment and
Acceptance pursuant to SECTION 3.9 OR 14.1 in which such institution
acquires a Commitment under such Facility.
"Canadian Revolving Credit Loan" means any Loan, including
without limitation any Base Rate Refunding Loan, under the Canadian
Revolving Credit Facility made in accordance with ARTICLE III to any
Facility Borrower thereunder.
"Canadian Swing Line Facility" means the revolving line of credit
established by the
Canadian Swing Line Facility Lender in favor of the Facility Borrowers
pursuant to SECTION
3.2.
"Canadian Swing Line Facility Lender" means NBC.
"Canadian Swing Line Loans" means Loans made by the Canadian
Swing Line Facility Lender to the Facility Borrowers pursuant to
SECTION 3.1.1.
"Canadian Swing Line Loan Outstandings" means, as of any date of
determination, the aggregate principal amount of all Canadian Swing
Line Loans then outstanding.
"Canadian Termination Event" means (i) a notice given with
respect to a Canadian Employee Pension Plan that registration under
Canadian Benefit Law may be revoked; or (ii) the termination of a
Canadian Employee Pension Plan or the filing of a notice of intent
under Canadian Benefit Law to terminate any such plan or the treatment
of any amendment to any such plan as a termination; or (iii) the
appointment of a provisional administrator, including any Governmental
Authority, to administer any Canadian Employee Pension Plan.
"Canadian Term Loan" means the Loan made by the Canadian Term
Loan Facility Lenders under the Canadian Term Loan Facility in
accordance with ARTICLE II.
"Canadian Term Loan Facility" means the facility described in
ARTICLE II providing for Advances in Canadian Dollars or US Dollars
and for Bankers' Acceptances in favor of the Facility Borrowers by the
Canadian Term Loan Facility Lenders in the aggregate principal amount
of the Total Commitment applicable to such Facility on the Closing
Date.
"Canadian Term Loan Facility Lenders" means, collectively, each Lender
identified on EXHIBIT A hereto as being a Lender having a Commitment
under the Canadian Term Loan Facility and each other financial
institution that executes and delivers an Assignment and Acceptance
pursuant to SECTION 3.9 OR 14.1 in which such Lender acquires a
Commitment under such Facility.
"Capital Expenditures" means, with respect to the Borrowers and
their Subsidiaries on a consolidated basis, for any period the SUM
(without duplication) of all expenditures (whether paid in cash or
accrued as liabilities and including without limitation Capital
Leases) by any Borrower or any Subsidiary during such period for items
that would be classified as "property, plant or equipment" or
comparable items in accordance with GAAP and, to the extent not
included therein, all transactional costs incurred in connection with
such expenditures provided the same have been capitalized, excluding,
however, the amount of any Capital Expenditures paid for or to be paid
for with proceeds of (i) casualty insurance, condemnation awards (or
payments in place thereof) or indemnity payments received from third
parties; (ii) any sale or trade in of worn-out, obsolete, surplus or
damaged fixed assets; or (iii) any government grants received by any
Borrower or any Subsidiary which are for the restricted purpose of
funding Capital Expenditures and which, if to be repaid, are repayable
in not less than five (5) years and on which no interest accrues or is
payable, in each case as evidenced in writing and submitted to the
Agents together with the compliance certificate delivered pursuant to
SECTION 10.1(A)(II) OR 10.1(B)(II) for such period.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with GAAP.
"Cash Collateral Account" means any account established and
maintained from time to time under either Cash Collateral Agreement
for the purposes set forth therein.
"Cash Collateral Agreement" means, collectively, the Cash
Collateral Agreements, each dated as of the Original Closing Date,
between the Facility Borrowers under the Canadian Revolving Credit
Facility and the Canadian Agent and between the Facility Borrowers
under the US Revolving Credit Facility and the US Agent, respectively,
as amended, modified or supplemented from time to time.
"Change in Consolidated Working Capital" means, with respect to
any determination thereof, the result obtained, expressed as a
positive or negative number as appropriate, by subtracting from (a)
Consolidated Working Capital as at the last day of the most recently
completed fiscal period of the Borrowers prior to such determination
(the "Prior Period") (b) the amount of Consolidated Working Capital as
at the last day of the fiscal period of the Borrowers immediately
preceding the Prior Period.
"Change of Control" means the occurrence of any of the following: (i)
the sale, lease or transfer, in one or a series of related
transactions, of all or substantially all of the assets of Consoltex
Group to any person or group (as such term is used in Section 13(d)(3)
of the Exchange Act) (other than the Principals or their Related
Parties), (ii) the adoption of a plan relating to the liquidation or
dissolution of Consoltex Group, or (iii) the acquisition by any person
or group (as such term is used in Section 13(d)(3) of the Exchange
Act) (other than the Principals and their Related Parties) of direct
or indirect majority in interest (more than 50%) of the voting power
of the voting stock of Consoltex Group by way of amalgamation, merger
or consolidation or otherwise; PROVIDED, HOWEVER, that the acquisition
by a person or group (as such term is used in Section 13(d)(3) of the
Exchange Act) (other than the Principals and their Related Parties) of
all or substantially all of the assets of LGHBV or a direct or
indirect majority in interest (more than 50%) of the voting power of
the voting stock of LGHBV by way of amalgamation, merger or
consolidation or otherwise, shall be deemed to be a Change of Control.
"Closing Date" means the first date on which all the conditions
set forth in SECTION 8.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended, and
any regulations promulgated thereunder.
"Collateral" means, collectively, all property of any Borrower,
any Subsidiary or any other Person in which the US Collateral Agent,
the Canadian Collateral Trustee or any Lender is granted a Lien under
any Security Instrument as security for all or any portion of the
Obligations.
"Commitment" means, for each Lender under any certain Facility,
the obligation of such Lender to make Advances (or Bankers'
Acceptances under any Canadian Facility) available under such Facility
to the Facility Borrowers in an aggregate principal amount from time
to time up to such Lender's Applicable Commitment Percentage of the
Total Commitment for such Facility at such time.
"Commitment Fee" means, at any time and from time to time, .425%
per annum.
"Confidential Information" means information that is furnished to
either Agent or any Lender by or on behalf of any Borrower or any of
its Subsidiaries or Affiliates on a confidential basis in connection
with any Facility, the Loan Documents or any of the transactions
contemplated thereby, but does not include any such information that
(a) is or becomes generally available to the public (other than as a
result of a breach by any such Agent or Lender of its confidentiality
obligations hereunder or otherwise), (b) was available to any Agent or
any Lender on a nonconfidential basis prior to its disclosure to such
Agent or Lender by any Borrower or any of its Subsidiaries, or (c) is
or becomes available to any Agent or Lender on a nonconfidential basis
from a source that is not, to the best of such Agent's or Lender's
knowledge, as the case may be, bound by a confidentiality arrangement
with any Borrower or any of its Subsidiaries or Affiliates in respect
of such information or otherwise prohibited from disclosing such
information.
"Consenting Lender" has the meaning given such term in SECTION
3.9(B).
"Consolidated Current Assets" means cash and all other assets of the
Borrowers and their Subsidiaries which would be classified as a
current asset in accordance with GAAP, less all applicable reserves
established in accordance with GAAP, all determined on a consolidated
basis.
"Consolidated Current Liabilities" means all liabilities of the
Borrowers and their Subsidiaries which by their terms are payable
within one year after the date of determination (including all
Indebtedness payable on demand or maturing not more than one year from
the date of determination and the current portion of long-term
liabilities having a maturity date in excess of one year), but
excluding in all cases the Outstandings less the undrawn portion of
any Letter of Credit then outstanding, all determined on a
consolidated basis and in accordance with GAAP.
"Consolidated EBITDA" means with respect to the Borrowers and
their Subsidiaries for any Four-Quarter Period ending on the date of
computation thereof, the sum of (i) Consolidated Net Income, (ii)
Consolidated Interest Expense, (iii) income tax expense, (iv)
amortization expense, (v) depreciation expense and (vi) with respect
to any foreign currency exchange gains and losses that are set forth
as a specific gain or loss in the financial statements most recently
delivered pursuant to SECTION 10.1(A)(I), (a) to the extent of any
such foreign currency exchange gain included in Net Income, less such
gain and (b) to the extent of any such foreign currency exchange loss
included in Net Income, plus such loss, all determined on a
consolidated basis and in accordance with GAAP; PROVIDED, HOWEVER,
that notwithstanding the foregoing, there shall be excluded from such
computation any expense related to post-retirement employee benefits;
PROVIDED FURTHER, HOWEVER, that notwithstanding the foregoing, there
shall be excluded from such computation (x) during any Four-Quarter
Period containing the fiscal quarters ending September 30, 1999 and
December 31, 1999 all non-recurring shareholder enhancement charges
and expenses incurred in connection with the AIP Equity Contribution
and related transactions in an aggregate amount not to exceed CAN
$4,000,000 and (y) during any Four-Quarter Period including the second
and third fiscal quarters of 1999 in the calculation thereof, up to
CAN$1,600,000 of restructuring charges incurred during such second or
third fiscal quarters.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to
the Borrowers and their Subsidiaries for any Four-Quarter Period
ending on the date of computation thereof, the ratio of (i)
Consolidated EBITDA for such period to (ii) Consolidated Fixed Charges
for such period.
"Consolidated Fixed Charges" means, with respect to the Borrowers
and their Subsidiaries for any Four-Quarter Period ending on the date
of computation thereof, the SUM, without duplication, of (i)
Consolidated Interest Expense for such period, (ii) all Required
Principal Payments to be made (other than any mandatory prepayment
required to be made in compliance with SECTION 2.5(A)), and all
optional payments of the Term Loan and the Term B Loan made, during
such period, (iii) income tax expense for such period, and (iv) all
dividends and other distributions paid in cash during such period
(regardless of when declared) on any shares of capital stock of
Consoltex Group then outstanding, all determined on a consolidated
basis and in accordance with GAAP.
"Consolidated Funded Indebtedness" means (i) all Outstandings (other
than the undrawn portion of outstanding Letters of Credit) under the
Revolving Credit Facilities and (ii) all other Indebtedness for Money
Borrowed of the Borrowers and their Subsidiaries, including without
limitation the Subordinated Debt, determined on a consolidated basis,
which by its terms matures more than one year from the date of its
determination or matures within one year from the date of its
determination but is renewable or extendable, at the option of any
Borrower or any of their Subsidiaries, to a date more than one year
from the date of its determination, including all payments of
principal in respect thereof that are to be made within one year from
the date of determination thereof; PROVIDED, HOWEVER, any Advances
made to finance payment of the scheduled interest payments with
respect to the Subordinated Notes payable on April 1 shall in each
instance be deemed to be made in the corresponding fiscal quarter
ending June 30, and any Advances made to finance payment of the
scheduled interest payments with respect to the Subordinated Notes
payable on October 1 shall in each instance be deemed to be made in
the corresponding fiscal quarter ending December 31.
"Consolidated Interest Expense" means, with respect to any period
of computation thereof, the interest expense of the Borrowers and
their Subsidiaries during such period, including without limitation
(i) the current amortized portion of debt discounts to the extent
included in interest expense for such period, (ii) all expense
incurred during such period with respect to the sale of Accounts
Receivable to one or more factors, and (iii) the portion of any
payments made during such period in connection with Capital Leases
allocable to interest expense, all determined on a consolidated basis
and in accordance with GAAP.
"Consolidated Net Income" means, for any period of computation
thereof, without duplication in the determination of revenues,
expenses and net gains, the gross revenues from operations of the
Borrowers and their Subsidiaries (including payments received by the
Borrowers and their Subsidiaries of (i) interest income, and (ii)
dividends and distributions made by Persons in which investment is
permitted pursuant to this Agreement), less all operating and non-
operating expenses of the Borrowers and their Subsidiaries (including
all income tax expense), all determined on a consolidated basis and in
accordance with GAAP but excluding (for all purposes other than the
computation of Consolidated EBITDA utilized to determine Excess Cash
Flow) as income: (A) net gains on the sale, conversion or other
disposition of capital assets or returned assets of any Pension Plan,
(B) net gains on the acquisition, retirement, sale or other
disposition of capital stock and other securities of any Borrower or
its Subsidiaries, (C) net gains on the collection of proceeds of life
insurance policies, (D) any write up of any asset, (E) net gains
attributable to any Person that is not a wholly owned Subsidiary of
such Person, except to the extent of the amount of dividends or other
distributions referred to in clause (ii) above, (F) net gains
attributable to any Person that accrued prior to the date such Person
became a Subsidiary of any Borrower or was merged into or consolidated
with any Borrower or any of its Subsidiaries, and (G) any other net
gain or credit of an extraordinary or unusual nature, all determined
in accordance with GAAP.
"Consolidated Net Worth" means, as of any day on which the amount
thereof is to be determined, the sum of the following in respect of
the Borrowers and their Subsidiaries (determined on a consolidated
basis and excluding any upward adjustment after the Closing Date due
to revaluation of assets): (i) the amount of issued and outstanding
share capital as of such day, plus (ii) the amount of additional paid-
in capital and retained earnings (or, in the case of a deficit, minus
the amount of such deficit) as of such day, all as determined in
accordance with GAAP.
"Consolidated Tangible Assets" means, as of the last day of any
Fiscal Year on which the amount thereof is to be determined, the net
book value of all tangible assets of the Borrowers and their
Subsidiaries as of such day, as determined on a consolidated basis and
in accordance with GAAP.
"Consolidated Total Capitalization" means, as of any day on which
the amount thereof is to be determined, the sum of Adjusted
Consolidated Total Debt as of such day plus Consolidated Net Worth as
of such day.
"Consolidated Total Debt" means, as of any date on which the
amount thereof is to be determined, the sum (without duplication) of
Consolidated Funded Indebtedness as of such date, plus all
Outstandings under the Term Loan Facilities and the Term B Loan
Facility as of such date, plus the aggregate outstanding principal
amount of Subordinated Debt as of such date, and minus the aggregate
amount of cash on hand of Consoltex Group and its Subsidiaries most
recently reported to each Agent and each Lender in form and substance,
and pursuant to internal reporting systems, reasonably acceptable to
the Required Lenders.
"Consolidated Working Capital" means, as of any date on which the
amount thereof is to be determined, the excess of Consolidated Current
Assets as of such day, over Consolidated Current Liabilities as of
such day.
"Consoltex" has the meaning given such term in the preamble
hereto.
"Consoltex Group" has the meaning given such term in the preamble
hereto.
"Consoltex International" means Consoltex International, Inc., a
New York corporation.
"Consoltex Mexico" has the meaning given such term in the
preamble hereto.
"Consoltex Mexico Borrowing Limit" means, with respect to
Consoltex Mexico, the maximum principal amount set forth below for
each of the US Term Loan Facility and the US Revolving Credit
Facility:
1. US Term Loan Facility US $7,500,000
2. US Revolving Credit Facility US $9,000,000
"Consoltex USA" has the meaning given such term in the preamble
hereto.
"Contingent Obligation" of any Person means (without duplication) all
contingent liabilities required to be included in the financial
statements (including footnotes) of such Person in accordance with
GAAP, all Rate Hedging Obligations of such Person and all obligations
of such Person guaranteeing or in effect guaranteeing any
Indebtedness, dividend or other obligation of any other Person (the
"primary obligor") in any manner, whether directly or indirectly,
including obligations of such Person however incurred:
(1) to purchase such Indebtedness or other obligation or any
property or assets constituting security therefor;
(2) (i) to advance or supply funds in any manner for the
purchase or payment of such Indebtedness or other obligation, or
(ii) to maintain a minimum working capital, net worth or other
balance sheet condition or any income statement condition of the
primary obligor;
(3) to grant or convey any Lien on any property or assets of
such Person to secure payment of such Indebtedness or other
obligation;
(4) to lease property or to purchase securities or other
property or services primarily for the purpose of assuring the
owner or holder of such Indebtedness or obligation of the ability
of the primary obligor to make payment of such Indebtedness or
other obligation; or
(5) otherwise to assure the owner of the Indebtedness or
such obligation of the primary obligor against loss in respect
thereof.
PROVIDED, HOWEVER, that the term Contingent Obligations shall not include
endorsements of instruments for deposit or collection or similar
obligations incurred in the ordinary course of business. For purposes
of the Loan Documents, the amount of any Contingent Obligation shall
be deemed to be the lesser of (a) the stated or determinable amount of
the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the reasonably anticipated
liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith and (b)
in the case of (i) any Contingent Obligations of the type referred to
under clause (3) above, the fair value of such property or assets in
respect of which such Contingent Obligations arise, as determined in
good faith by such Person and (ii) any Contingent Obligations of the
type referred to under clause (4) above, the aggregate amount of such
lease payments or purchase price of such securities, property or
services.
"Cost of Acquisition" means, with respect to any Acquisition, as at
the date of entering into any agreement therefor, the SUM of the
following (without duplication): (i) the value of the capital stock,
warrants or options to acquire capital stock of any Borrower or any
Subsidiary to be transferred in connection therewith, (ii) the amount
of any cash and fair market value of other property (excluding
property described in clause (i) and the unpaid principal amount of
any debt instrument) given as consideration, (iii) the amount
(determined by using the face amount or the amount payable at
maturity, whichever is greater) of any Indebtedness incurred, assumed
or acquired by any Borrower or any Subsidiary in connection with such
Acquisition, (iv) all additional purchase price amounts in the form of
earnouts (which shall not include reasonable salary and bonus) and
other contingent obligations that should be recorded on the financial
statements of the Borrowers and their Subsidiaries in accordance with
GAAP, (v) all amounts paid in respect of covenants not to compete,
consulting agreements that should be recorded on financial statements
of the Borrowers and their Subsidiaries in accordance with GAAP, and
other affiliated contracts in connection with such Acquisition, (vi)
the aggregate fair market value of all other consideration given by
any Borrower or any Subsidiary in connection with such Acquisition,
and (vii) out of pocket transaction costs for the services and
expenses of attorneys, accountants and other consultants incurred in
effecting such transaction, and other similar transaction costs so
incurred. For purposes of determining the Cost of Acquisition for any
transaction, (A) the capital stock of Consoltex Group shall be valued
(I) with respect to shares that are listed and posted for trading on a
Canadian stock exchange, at the last closing price of a board lot of
shares on The Montreal Exchange (or, if the shares are not listed and
posted for trading on The Montreal Exchange, the last closing price on
The Toronto Stock Exchange), or (II) with respect to shares that are
not freely tradeable, as determined by a committee composed of the
disinterested members of the Board of Directors of Consoltex Group
and, if requested by the Agents, determined to be a reasonable
valuation by the independent public accountants referred to in SECTION
10.1(A), (B) the capital stock of any other Borrower or any Subsidiary
shall be valued as determined by a committee composed of the
disinterested members of the Board of Directors of such Subsidiary
and, if requested by the Agents, determined to be a reasonable
valuation by the independent public accountants referred to in SECTION
10.1(A), and (C) with respect to any Acquisition accomplished pursuant
to the exercise of options or warrants or the conversion of
securities, the Cost of Acquisition shall include both the cost of
acquiring such option, warrant or convertible security as well as the
cost of exercise or conversion.
"Default" means any event or condition which, with the giving or
receipt of notice or lapse of time or both, would constitute an Event
of Default hereunder.
"Default Rate" means, at any date of determination, (i) with
respect to each Eurodollar Rate Loan, a rate per annum of two percent
(2%) above the Eurodollar Rate applicable to such Segment during the
Interest Period in effect therefor, and thereafter a rate per annum of
two percent (2%) above the applicable Base Rate, (ii) with respect to
Base Rate Loans and all other overdue amounts (other than with respect
to Bankers' Acceptances), a rate per annum of two percent (2%) above
the applicable Base Rate and (iii) in any such case, the maximum rate
permitted by applicable law, if lower.
"Defaulted Advance" means, with respect to any Lender at any time, the
amount of any Advance or Bankers' Acceptances required to be made by
such Lender to any Borrower pursuant to SECTION 3.1 at or prior to
such time that has not been so made as of such time; PROVIDED,
HOWEVER, that any deficiency advance made by the Relevant Agent for
the account of such Lender pursuant to SECTION 3.7 shall not be
considered a Defaulted Advance even if, at such time, such Lender
shall not have reimbursed such Agent therefor. If a portion of a
Defaulted Advance shall be deemed made pursuant to SECTION 3.7(B), the
remaining portion of such Defaulted Advance shall be considered a
Defaulted Advance originally required to be made pursuant to SECTION
3.1, as the case may be, on the same date as the Defaulted Advance so
deemed made in part.
"Discount" means (i) with respect to a Bankers' Acceptance
accepted by a Canadian Facility Lender which is a bank governed by the
BANK ACT (Canada), the amount which is the difference between the face
amount of such Bankers' Acceptance and the Discounted Proceeds and
(ii) with respect to a Bankers' Acceptance which is a Discount Note,
the amount determined by the Canadian Agent as being the arithmetic
average (rounded upward to the nearest 1/100th of 1%), of the
discounts applicable to the Bankers' Acceptances accepted by (or that
would be accepted by) the Canadian Facility Lenders which are banks
governed by the BANK ACT (Canada) and issued under the same Facility
on the day the Discount Note is issued and having the same maturity as
such Discount Note.
"Discount Note" means a non-interest bearing note substantially
in the form of EXHIBIT J, issued by Consoltex or Consoltex Group under
a Canadian Facility in favor of a Non-BA Lender and discounted by such
Non-BA Lender, the Loan evidenced by such note being made in lieu of
accepting Bankers' Acceptances.
"Discounted Proceeds" means in respect of any Bankers' Acceptance
to be accepted by a Canadian Facility Lender which is a bank governed
by the BANK ACT (Canada) on any day, an amount (rounded to the nearest
whole cent, and with one-half of one cent being rounded up) calculated
on such day by multiplying:
(a) the face amount of such Bankers' Acceptance, by
(b) the price, where the price is determined by dividing one by
the sum of one plus the product of:
(i) the Discount Rate (expressed as a decimal); and
(ii) a fraction, the numerator of which is the number of
days in the term of such Bankers' Acceptance and the
denominator of which is 365;
with the price as so determined being rounded up or down to
the fifth decimal place and .000005 being rounded up.
"Discount Rate" with respect to an issue of Bankers' Acceptances
with the same maturity date, means the rate determined by the Canadian
Agent as being the discount rate, calculated on the basis of a year of
365 days, of each of the Canadian Facility Lenders which are banks
governed by the BANK ACT (Canada), established in accordance with
their normal practices at or about 9:30 a.m. (Montral time) on the
date of issue and acceptance of such Bankers' Acceptances, for
bankers' acceptances having a face value comparable, and a maturity
date identical, to the face value and maturity date of the Bankers'
Acceptances forming part of such issue to be accepted by each such
Canadian Facility Lender.
"Drawdown Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under a Revolving Credit
Facility, or an issuance of Bankers' Acceptances under the Canadian
Revolving Credit Facility, in substantially the form of EXHIBIT E.
"Eligible Fixed Assets" means, on any date of determination, the
assets of the Borrowers as of such date consisting of land, buildings,
structures, improvements and fixtures located anywhere other than in
Mexico or Costa Rica and in which the US Collateral Agent or the
Canadian Collateral Trustee shall have a first priority perfected
security interest pursuant to the Security Instruments, free of any
Lien other than such security interest, Statutory Permitted Liens, the
hypothecs in favor of the landlords listed in SCHEDULE 11.4(J), and
landlord liens arising by operation of law with respect to locations
of the Borrowers in Canada unless a waiver of any such landlord lien
is requested by the Agents and is not received within sixty (60) days
after such request; PROVIDED, HOWEVER, in the event the Agents do not
receive written notice from Consoltex that it has renewed the lease of
real property on which a portion of its manufacturing and warehouse
facility in Cowansville, Quebec is located at least three (3) months
prior to the scheduled maturity date of such lease as of the Closing
Date, all land, buildings, structures, improvements and fixtures
located at such manufacturing and warehouse facility shall be excluded
from the determination of Eligible Fixed Assets after such maturity
date.
"Eligible Inventory" means all of the Inventory of the Borrowers,
without duplication (valued at the lower of cost, determined using the
first-in-first-out method, replacement cost and net realizable value,
but in no event valued at greater than fair market value), which
consists of raw materials (which shall include all greige goods and
all polypropylene products), and finished goods inventory (but in no
event work in process of Consoltex and Balson-Hercules), and in which
the US Collateral Agent, the Canadian Agent, the Canadian Facilities
Lenders or the Canadian Collateral Trustee shall have a first priority
perfected security interest pursuant to the Security Instruments, free
of any Lien other than such security interest, Statutory Permitted
Liens and the hypothecs in favor of the landlords listed in SCHEDULE
11.4(J), and landlord liens arising by operation of law with respect
to locations of the Borrowers in Canada unless a waiver of any such
landlord lien is requested by the Agents and is not received within
sixty (60) days after such request, and which conforms in all material
respects to the warranties contained in the Security Agreement, less
(to the extent otherwise included in Eligible Inventory) (i) any
supplies, spare parts, goods returned or rejected by customers of any
Borrower which are not saleable or are subject to a Lien of any
factor of Accounts Receivable of any Borrower, goods to be
returned to suppliers of any Borrower, goods in transit to third
parties (other than the agents, leaseholds or warehouses of any
Borrower), (ii) any reserves required under GAAP for ▇▇▇▇ and hold
(deferred shipment) sales as and to the extent such reserves relate to
such Eligible Inventory, and (iii) any Inventory of Balson-Hercules
other than Inventory located on property owned or leased by Balson-
Hercules or held at a bonded warehouse for the benefit of Balson-
Hercules.
"Eligible Receivables" means all of (i) the Accounts Receivable in
which the US Collateral Agent or the Canadian Collateral Trustee shall
have a first priority perfected security interest pursuant to the
Security Instruments, free of any Lien other than such security
interest and Statutory Permitted Liens, for which the account debtor
is not an Affiliate of any Borrower or Subsidiary and is located in
Canada or in the United States of America or, if in another
jurisdiction, for which the applicable Account Receivable is supported
by a letter of credit that has been remitted, and is reasonably
acceptable, to the US Collateral Agent or the Canadian Agent, as the
case may be, and in no event shall include any Account Receivable
subject to a Lien of, or which has been sold, assigned or otherwise
disposed of to, any factor of Accounts Receivable of any Borrower, and
(ii) the accounts receivable of Rafytek which are supported by a
letter of credit that has been delivered, and is reasonably
acceptable, to the US Collateral Agent, and which in the case of both
clauses (i) and (ii) above are less than 90 days (120 days in the case
of agrotextile and cotton bale wrap customers of LINQ) past the
applicable invoice date (unless they are supported by a letter of
credit that has been assigned or pledged, and is reasonably
acceptable, to the Relevant Agent) and conform to the warranties
contained in the Security Agreement in all material respects, less any
returns, discounts, claims, setoffs, credits and allowances of any
nature with respect to such Accounts Receivable or the related goods
(whether issued, owing, granted or outstanding).
"Eligible Securities" means the following obligations and any
other obligations approved in writing by the Relevant Agent (which
approval shall not be unreasonably withheld or delayed):
(a) Government Securities;
(b) obligations of any corporation organized under the laws
of Canada or any province thereof or any state of the United
States of America or under the laws of any other nation, payable
in Canada or in the United States of America, expressed to mature
not later than 360 days following the date of issuance thereof
and rated in an investment grade rating category by S&P and
Moody's;
(c) interest bearing demand or time deposits, or
certificates of deposit or bankers' acceptances maturing within
one year days from the date of issuance thereof, and issued by a
Lender or a bank or trust company organized under the laws of the
United States of America or Canada or of any state or province
thereof having capital combined surplus and undivided profits
aggregating at least US $400,000,000 and being rated "A-3" or
better by S&P or "A" or better by Moody's;
(d) Repurchase Agreements;
(e) Municipal Obligations;
(f) insured certificates of deposit, deposit notes or term
deposit receipts of any commercial bank listed on Schedule I of
the BANK ACT (Canada);
(g) commercial paper issued by any corporation organized under
the laws of Canada or any province thereof and rated at least A-1
(or the then equivalent grade) by the Canada Bond Rating Service
or R-1 (middle)/low (or the then equivalent grade) by the
Dominion Bond Rating Service;
(h) commercial paper issued by any corporation organized
under the laws of any state of the United States and rated at
least "Prime-1" (or the then equivalent grade) by Moody's or "A-
1" (or the then equivalent grade) by S&P; and
(i) shares of mutual funds which invest in obligations
described in paragraphs (a) through (h) above, the shares of
which mutual funds are at all times rated "AAA" by S&P.
"Employee Benefit Plan" means any employee benefit plan, other
than a Pension Plan, subject to Section 401(a) of the Code (including
any trust agreement subject to Section 501 of the Code under any such
plan) that is maintained for employees of a Borrower or with respect
to which any Borrower could incur a liability.
"Environmental Laws" means, collectively, as applicable to and
governing any certain Borrower or its properties, (i) each binding
Canadian, Mexican and Costa Rican applicable federal, provincial or
local Act, Statute, Regulation, By-Law, policy, code, instruction,
guideline, indicator, order, infraction notice, correction notice,
decision, declaration, injunction, decree, order-in-council, judgment
and summons, and, as applicable in Quebec, the "Politique de
rehabilitation des terrains contamines" and the "Lignes directrices en
matiere d'enlvement de reservoirs souterrains ayant contenu des
produits ptroliers" and pertains in whole or in part to the
environment or to its protection, adopted, published, sent or rendered
by any Governmental Authority; and (ii) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, the Superfund Amendments and Reauthorization Act of 1986, the
Resource Conservation and Recovery Act, the Toxic Substances Control
Act, as amended, the Clean Air Act, as amended, the Clean Water Act,
as amended, any other "Superfund" or "Superlien" law or any other
federal, or applicable state or local statute, law, ordinance, code,
rule, regulation, order or decree regulating, or imposing liability or
standards of conduct concerning, any Hazardous Material.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder.
"ERISA Affiliate" means any Person or trade or business which is
a member of a group which is under common control with any Borrower,
or who, together with such Borrower, is treated as a single employer
within the meaning of Section 414(b) and (c) of the Code.
"Eurocurrency Liabilities" has the meaning given such term in
Regulation D.
"Eurodollar Rate" means (i) with respect to Term B Loans, the
interest rate per annum calculated according to the following formula:
Eurodollar = Interbank Offered Rate + 3.00%
Rate
and (ii) with respect to all other Loans, the interest rate per annum
calculated according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable Margin
Rate
"Eurodollar Rate Loan" means any Advance or portion of an Advance
for which the rate of interest is determined by reference to the
Eurodollar Rate.
"Eurodollar Rate Segment" means a portion of the principal amount
outstanding under a Facility for which the rate of interest is
determined by reference to the Eurodollar Rate.
"Eurodollar Reserve Percentage" means, with respect to any US
Facility Lender for any Interest Period for any Eurodollar Rate Loan,
the reserve percentage applicable two (2) Business Days before the
first day of such Interest Period under regulations issued from time
to time by the Board for determining the actual reserve requirement
(including, without limitation, any emergency, special, supplemental
or other marginal reserve requirement) for such Lender with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on
Eurodollar Rate Loans is determined) having a term equal to such
Interest Period.
"Event of Default" has the meaning given such term in SECTION
12.1.
"Excess Cash Flow" means, with respect to the Borrowers and their
Subsidiaries for any period, the difference of (a) Consolidated EBITDA
for such period (including within Consolidated Net Income for purposes
of computing Consolidated EBITDA as used in this definition, any net
gain or loss, as applicable, otherwise excluded from the calculation
thereof in the definition of "Consolidated Net Income" that is
realized in cash or cash equivalents) MINUS (b) the sum of (i) any
Change in Consolidated Working Capital as at the end of such period,
(ii) Capital Expenditures accrued during such period, (iii)
Consolidated Interest Expense for such period, (iv) all Required
Principal Payments to be made during such period, all optional
payments of the Term Loans made in accordance with SECTION 2.4 and all
optional payments of the Term B Loan made in accordance with SECTION
2A.4, and (v) consolidated income tax expense during such period.
"Excess Cash Flow Prepayment" has the meaning given to such term
in SECTION 2.5(B).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor thereto.
"Existing Stated Termination Date" has the meaning given such term in
SECTION 3.9(A).
"Extension Date" has the meaning given such term in SECTION
3.9(B).
"Facility" means any of the Revolving Credit Facilities, the
Letter of Credit Facilities, the Term Loan Credit Facilities, the
Canadian Swing Line Facility and the Term B Loan Facility.
"Facility Borrower" means, when in relation to (i) the Canadian
Revolving Credit Facility, the Canadian Swing Line Facility and
Canadian Letter of Credit Facility: each of Consoltex and Consoltex
Group; (ii) the Canadian Term Loan Facility: Consoltex; (iii) the US
Revolving Credit Facility and the US Letter of Credit Facility: each
of Consoltex USA, Balson-Hercules, LINQ and Consoltex Mexico; (iv) the
US Term Loan Facility: each of LINQ and Consoltex Mexico; and (v) the
Term B Loan Facility: Consoltex USA.
"Facility Guaranty" means each guaranty agreement between one or
more Guarantors and the Agents for the benefit of the Lenders,
delivered as of the Original Closing Date or otherwise pursuant to
SECTION 10.17, as the same may be amended, modified or supplemented
from time to time.
"Facility Termination Date" means the first date on which both
the Revolving Credit Termination Date, the Term Loan Termination Date
and the Term B Loan Termination Date shall have occurred, no Letters
of Credit shall remain outstanding and the Borrowers shall have fully
paid all Obligations.
"Federal Funds Effective Rate" means, for any day, the rate per
annum (rounded upward to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers on such day, as published by the Federal Reserve Bank of New
York on the Business Day next succeeding such day, PROVIDED that (a)
if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business
Day, and (b) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average
rate quoted to the Relevant Agent on such day on such transaction from
three Federal funds brokers of recognized standing selected by the
Relevant Agent.
"Fiscal Year" means the twelve month fiscal period of the
Borrowers and their Subsidiaries commencing on January 1 of each
calendar year and ending on the next succeeding December 31.
"Four-Quarter Period" means a period of four full consecutive
fiscal quarters of the Borrowers and their Subsidiaries, taken
together as one accounting period.
"Fully Satisfied" means with respect to the Obligations as of any
date, that on or before such date, (i) the principal of and interest
accrued to such date on all outstanding Loans and Reimbursement
Obligations shall have been paid in full in cash or, in the case of
Bankers' Acceptances, have been cash collateralized, (ii) the
aggregate undrawn amount of all then outstanding Letters of Credit
shall have been cash collateralized, (iii) all Hedge Agreements under
which Rate Hedging Obligations have been incurred shall have been
terminated or all obligations thereunder of the Borrowers (other than
for fees and expenses not yet due and payable and indemnities) shall
have been cash collateralized, (iv) all fees, expenses and other
amounts then due and payable (specifically excluding continuing
indemnities, obligations under SECTION 7.7 and expense reimbursement
obligations not yet due and payable) which constitute Obligations
shall have been paid in full in cash, and (v) each of the Total
Commitments shall have expired or been terminated.
"GAAP" or "Generally Accepted Accounting Principles" means the
accounting principles generally accepted in Canada as recommended in
the Canadian Institute of Chartered Accountants Handbook and applied
on a consistent basis with those applied in the preparation of the
audited consolidated financial statements of Consoltex Group referred
to in SECTION 9.5(A); PROVIDED, HOWEVER, with respect to the financial
statements of any Borrower or Guarantor organized under the laws of
any jurisdiction other than Canada or a province thereof, GAAP shall
mean the accounting principles generally accepted in such jurisdiction
from time to time and applied on a consistent basis; PROVIDED FURTHER,
however, the new recommendations of the Canadian Institute of
Chartered Accountants requiring the use of the liability method of
accounting for income tax purposes may be adopted and applied in
preparing all financial statements required to be delivered under the
Agreement and calculating all financial covenants in SECTION 11.1.
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, Canada or any province
thereof or the United States of America or any agency or
instrumentality thereof.
"Governmental Authority" shall mean as applicable to and
governing any certain Borrower, any United States of America, any
Canadian, any Mexican and any Costa Rican, federal, state, provincial,
municipal, national or other governmental department, ministry,
commission, board, bureau, court, agency or instrumentality or
political subdivision thereof or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether
associated with the United States of America or any of its states,
Canada or any of its provinces, Mexico or any of its states, Costa
Rica or a foreign entity or government.
"Grantor" has the meaning given such term in SECTION 6.3.
"Guarantors" means, at any date, each of Consoltex Group, Consoltex,
Consoltex USA, Consoltex International, Balson-Hercules, LINQ,
Consoltex Mexico, Rafytek, Rafytica, Royalton, Marino Mexico, Vestco,
▇▇▇▇ ▇▇▇, and any other Subsidiaries or other Persons who are required
to be parties to a Facility Guaranty at such date, PROVIDED that each
of Rafytek, Consoltex Mexico, Rafytica, Royalton, Marino Mexico,
Vestco, ▇▇▇▇ ▇▇▇ shall only guarantee the Obligations of Rafytek,
Consoltex Mexico, Rafytica, Royalton, Marino Mexico, Vestco, ▇▇▇▇ ▇▇▇,
Consoltex and Consoltex Group.
"Hazardous Material" means any waste, substance or material,
including without limitation petroleum products, the generation,
handling, storage, disposal, treatment, deposit, release, discharge or
emission of which is subject to any Environmental Law.
"Hedge Agreement" means one or more agreements between any
Borrower and any Person with respect to Indebtedness incurred
hereunder owing to a Lender or evidenced by any or all of the Notes,
on terms mutually acceptable to such Borrower and such Person and
approved by each of the Agents, which approval shall not be
unreasonably withheld or delayed, which agreements create Rate Hedging
Obligations.
"Income Tax Act" means the INCOME TAX ACT, R.S.C. 1985, 5th
Supplement, as amended, and any regulations promulgated thereunder.
"Indebtedness" means, with respect to any Person, without
duplication, all Indebtedness for Money Borrowed of such Person, all
liability of such Person by way of endorsements (other than for
collection or deposit or similar obligations incurred in the ordinary
course of business) and all Contingent Obligations of such Person;
PROVIDED that in no event shall the term Indebtedness include surplus
and retained earnings, lease obligations (other than pursuant to
Capital Leases), deferred income taxes and investment credits, other
deferred credits or reserves, deferred compensation obligations, or
trade or other accounts payable in the ordinary course of business
(PROVIDED that such accounts payable are not outstanding for more than
one (1) year).
"Indebtedness for Money Borrowed" means, with respect to any
Person, without duplication, all indebtedness of such Person in
respect of money borrowed, including without limitation outstanding
Bankers' Acceptances (to the full extent of their face amount),
Capital Leases, the deferred purchase price of any property or asset,
and indebtedness evidenced by a promissory note, bond, debenture or
similar written obligation for the payment of money (including
conditional sales or similar title retention agreements).
"Indemnified Party" has the meaning given such term in SECTION
14.9.
"Initial Mortgaged Properties" has the meaning given such term in
SECTION 8.1(XV).
"Interbank Offered Rate" means, with respect to any Eurodollar Rate
Loan for the Interest Period applicable thereto, the rate of interest
equal to the rate per annum at which deposits in U.S. Dollars for a
period equal to such Interest Period appear on Page 3750 of the
Telerate screen as of 11:00 A.M., London time, two (2) Business Days
prior to the beginning of such Interest Period. In the event that
such rate does not appear on Page 3750 of the Telerate Service (or
otherwise on such service), the Interbank Offered Rate shall be
determined by reference to such other publicly available service for
displaying Eurodollar rates as may be agreed upon by the Agents and
the Borrowers or, in the absence of such agreement, the Interbank
Offered Rate shall instead be the average (rounded upward to the
nearest one-hundredth (1/100) of one percent) per annum rate of
interest determined by the US Agent or the Canadian Agent (each such
determination to be conclusive and binding) as of two (2) Business
Days prior to the first day of such Interest Period, as the effective
rate at which deposits in immediately available funds in US Dollars
are being offered or quoted by the US Agent or the Canadian Agent to
major banks in the applicable interbank market for Eurodollar deposits
at any time during the Business Day which is the second Business Day
immediately preceding the first day of such Interest Period, for a
term comparable to such Interest Period and in the amount of the
Eurodollar Rate Loan.
"Interest Period" means, for each Eurodollar Rate Loan and each
Eurodollar Rate Segment, a period commencing on the date such
Eurodollar Rate Loan or such Eurodollar Rate Segment is made or
converted and ending, at the Borrower's option, on the date one, two,
three or six months thereafter as notified to the Relevant Agent by an
Authorized Representative three (3) Business Days prior to the
beginning of such Interest Period; PROVIDED, that,
(i) if an Authorized Representative fails to notify the
Relevant Agent of the length of an Interest Period at least three
(3) Business Days prior to the first day of such Interest Period,
the Loan for which such Interest Period was to be determined
shall be deemed to be a Base Rate Loan as of the first day
thereof;
(ii) if an Interest Period for a Eurodollar Rate Loan would
end on a day which is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day (unless
such extension would cause the applicable Interest Period to end
in the succeeding calendar month, in which case such Interest
Period shall end on the next preceding Business Day);
(iii) whenever the first day of any Interest Period occurs
on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds
such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding calendar
month; and
(iv) no Interest Period shall extend past the Stated
Termination Date then in effect for Revolving Credit Loans or
past the Term Loan Maturity Date for any Term Loans or past the
Term B Loan Maturity Date for any Term B Loan.
"Inventory" means all Inventory of the Borrowers (exclusive of
Consoltex Mexico) as defined in the Security Agreement.
"Issuing Bank" means one or the other of the Canadian Issuing
Bank and the US Issuing Bank.
"Lender" and "Lenders" have the meanings given such terms in the
preamble hereto and in each event, where applicable, "Lenders" shall
include without limitation the Canadian Swing Line Facility Lender.
"Lending Office" means, as to each Lender, the Lending Office of
such Lender designated on the signature pages hereof or in an
Assignment and Acceptance signed by such Lender as assignee or such
other office of such Lender (or of an affiliate of such Lender) as
such Lender may from time to time specify to the Authorized
Representatives and the Agents as the office by which its Loans are to
be made and maintained; PROVIDED, that as a result of such change of
office no Borrower shall, without the written consent of an Authorized
Representative, (i) be obligated to provide any additional
compensation (other than a de minimis amount of such additional
compensation) to any Lender under or in respect of this Agreement, any
Note or any other Loan Document or (ii) otherwise incur or suffer any
material disadvantage.
"Letter of Credit" means any of a Canadian Letter of Credit or a
US Letter of Credit.
"Letter of Credit Facilities" means, collectively, the Canadian
Letter of Credit Facility and the US Letter of Credit Facility.
"Lien" means any interest in or right with respect to property of
any certain Borrower or its Subsidiaries, securing any obligation owed
to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the Civil Code of Qubec, the
applicable Uniform Commercial Code, the common law, statute or
contract, and including but not limited to the right of an unpaid
vendor or supplier to dissolve the sale or to repossess goods, any
lien, security interest or priority arising by operation of law or
from a mortgage, hypothec, encumbrance, pledge, security agreement,
conditional sale or trust receipt or a lease, trust, deemed trust,
consignment for security purposes or bailment for security purposes
and including also a margin payment made in connection with a Rate
Hedging Obligation. For the purposes of this Agreement, any Borrower
and any Subsidiary shall be deemed to be the owner of any property
which it has acquired or holds subject to a conditional sale
agreement, financing lease, or other arrangement pursuant to which
title to the property has been retained by or vested in some other
Person until full payment of its purchase price or for security
purposes.
"LINQ" has the meaning given such term in the preamble hereto.
"LGHBV" means Les Gantiers Holding B.V.
"LGHBV Letter of Credit" means that certain Letter of Credit
issued by the US Issuing Bank or the Canadian Issuing Bank under the
US Letter of Credit Facility or the Canadian Letter of Credit Facility
to LGHBV in the original stated amount of approximately CAN$4,650,000
at any time after the Closing Date.
"Loan" or "Loans" means any of the Advances made under the
Revolving Credit Facilities, the Term Loan Facilities or the Term B
Loan Facility, respectively and any Bankers' Acceptances issued
thereunder to the full extent of its face amount.
"Loan Documents" means this Agreement, the Notes, the Security
Instruments, the Facility Guaranties, the Applications for Letter of
Credit, and each other agreement or instrument hereafter executed and
delivered evidencing, governing or securing any Obligation or entered
into or issued with respect to the Collateral, other than financing
statements, termination statements, certificates of officers and items
to be delivered on the Closing Date of a similar nature, as the same
may be amended, supplemented or replaced from time to time.
"Marino" has the meaning given thereto in the preamble hereof.
"Marino Acquisition" means the Acquisition of Marino in August,
1999 in accordance with the terms of SECTION 11.2 as then in effect.
"Marino Mexico" has the meaning given thereto in the preamble
hereof.
"Material Adverse Effect" means a material adverse effect on (i)
the business, properties, operations or condition, financial or
otherwise, of the Borrowers and their Subsidiaries on a consolidated
basis or (ii) the ability of the Borrowers and Guarantors, considered
as a whole, to observe the covenants and agreements contained herein
or in any other Loan Document.
"Maximum Permitted Principal Amount" has the meaning given such
term in SECTION 3.1(A).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" means, collectively, all hypothecs, mortgages, deeds
of trust and deeds granting a Lien to the Canadian Collateral Trustee,
the US Collateral Agent or a trustee for the benefit of either Agent
for the benefit of the Lenders in Collateral constituting real
property and fixtures to secure Obligations existing as of the Closing
Date or at any time thereafter, as such documents may be amended,
modified or supplemented from time to time.
"Mortgaged Property" means, collectively, the real property and
fixtures of the Borrowers as described in the Mortgages.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which any Borrower or any ERISA
Affiliate is making, or is accruing an obligation to make,
contributions or has made, or been obligated to make, contributions
within the preceding five (5) years other than the District 65 Pension
Plan from which Balson-Hercules withdrew effective January 31, 1995.
"Municipal Obligations" means general obligations issued by, and
supported by the full taxing authority of, any state of the United
States of America or any province of Canada or of any municipal
corporation or other public body organized under the laws of any such
state or any such province which are rated in the highest investment
rating category by both S&P and ▇▇▇▇▇'▇.
"NBC" has the meaning given such term in the preamble hereto.
"Net Proceeds" means cash payments received from the issuance of
equity as and when received, net of all legal, accounting, banking,
underwriting, title, recording and other similar fees and expenses,
commissions, discounts and other issuance expenses incurred in
connection therewith and all taxes required to be paid or accrued (or
estimated in good faith to be required to be paid or accrued) as a
consequence of such issuance.
"Non-BA Lender" means a Canadian Facility Lender which is not a
bank governed by the BANK ACT (Canada) and in favor of which are
issued Discount Notes.
"Non-Consenting Lender" has the meaning given such term in
SECTION 3.9(B).
"Non-Funding Lender" has the meaning given such term in SECTION
3.7.
"Notes" means, collectively, the promissory notes of the
applicable Facility Borrowers evidencing US Revolving Credit Loans or
US Term Loans or Term B Loans, as the case may be, executed and
delivered to the applicable Lenders substantially in the forms of
EXHIBITS G-1, G-2 AND G-3, respectively, with appropriate insertions
as to amounts, dates and names of such Lenders.
"Notice Officers" has the meaning given to such term in SECTION
10.10.
"Obligations" means the obligation to pay (i) the principal and
interest on the Loans, (ii) the Reimbursement Obligations, (iii) all
Rate Hedging Obligations of any Borrower to any Lender which arise
under a Hedge Agreement, and (iv) all other obligations, liabilities
and Indebtedness of the Borrowers to the Lenders or the Agents or the
US Collateral Agent or the Canadian Collateral Trustee hereunder or
under any one or more of the other Loan Documents.
"Original Closing Date" means March 19, 1996, the date on which
the Borrowers, the Agents and certain of the Lenders first entered
into the Credit Agreement.
"Outstandings" means, as the context may require, at any date,
(i) with respect to any certain Facility, the aggregate principal
amount of the Loans then outstanding under such Facility, including
the aggregate face amount of Bankers' Acceptances then outstanding
thereunder, and the then aggregate amount remaining undrawn under the
Letters of Credit issued thereunder plus Reimbursement Obligations
relating thereto then outstanding (in each case net against amounts
deposited in accordance with SECTION 5.10 in a Cash Collateral
Account) and (ii) with respect to all the Facilities, the aggregate
principal amount of the Loans then outstanding under all the
Facilities, including the aggregate face amount of Bankers'
Acceptances then outstanding thereunder, and the then aggregate amount
remaining undrawn under the Letters of Credit issued thereunder plus
Reimbursement Obligations relating thereto then outstanding on such
date.
"Participating Lenders" has the meaning given such term in
SECTION 5.12.
"Participation" means, as the context may require, (i) with respect to
any Lender (other than the applicable Issuing Bank), the extension of
credit represented by the participation of such Lender in the
liability of such Issuing Bank in respect of a Letter of Credit issued
by the Issuing Bank in accordance with the terms hereof, (ii) with
respect to any Lender, the extension of credit represented by the
participation of such Lender in the liability of another Lender under
a Facility to which the participating Lender is not a party in
accordance with SECTION 5.12 hereof and (iii) with respect to any
Canadian Revolving Credit Facility Lender (other than the Canadian
Swing Line Facility Lender), the extension of credit represented by
the participation of such Lender in the liability of the Canadian
Swing Line Facility Lender in respect of a Canadian Swing Line Loan
made in accordance with the terms hereof.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Pension Plan" means any employee benefit plan, other than a
Multiemployer Plan, that is subject to the provisions of Title IV of
ERISA or Section 412 of the Code and (i) that is maintained by any
Borrower or any ERISA Affiliate or (ii) in respect of which any such
entity would reasonably be expected to have liability under Sections
4042, 4062, 4064 or 4069 of ERISA in the event such plan has been or
were to be terminated.
"Permitted Liens" means those liens permitted under SECTION 11.4.
"Person" means an individual, partnership, corporation, trust,
unincorporated organization, association, joint venture or a
government or agency or political subdivision thereof.
"Pledge Agreement" means, collectively (or individually as the
context may indicate), (i) that certain Stock Pledge Agreement dated
as of the Original Closing Date between each of Consoltex, Consoltex
USA and Consoltex Mexico and the US Collateral Agent for the benefit
of the Lenders, (ii) that certain Stock Pledge Agreement dated as of
the Original Closing Date between each of Consoltex (USA), Consoltex
Mexico and Consoltex and the US Collateral Agent for the benefit of
the Lenders, (iii) that deed of hypothec by Consoltex Group in favor
of the Canadian Collateral Trustee, (iv) that certain Stock Pledge
Agreement dated as of October 22, 1999 between Marino and the US
Collateral Agent for the benefit of the Lenders, and (v) any
additional Stock Pledge Agreement delivered pursuant to SECTION 10.17,
as hereafter amended, modified or supplemented from time to time.
"Pledged Stock" has the meaning given to such term in the Pledge
Agreement and also means the shares of Consoltex listed in Schedule A,
paragraph A.1, of the deed of hypotec referred to in clause (iii) of
the definition of "Pledge Agreement."
"Principal Office" means, when used in relation to (i) the Canadian
Agent: the office of the Canadian Agent at National Bank of Canada,
▇▇▇, ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Syndication ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇, Attention: Senior Manager, or such
other office and address as the Canadian Agent may from time to time
designate to the applicable Facility Borrowers and the Canadian
Facility Lenders for such purpose and to (ii) the US Agent: the office
of the US Agent at Bank of America, N.A., Independence Center, ▇▇▇▇
▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Agency Services, or such other office and address as the US Agent may
from time to time designate to the applicable Facility Borrowers and
the US Facility Lenders for such purpose.
"Principals" means LGHBV and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
"Prime Rate" means the rate of interest per annum announced
publicly by the US Agent as its prime rate from time to time. The
Prime Rate is not necessarily the best or the lowest rate of interest
offered by the US Agent.
"Rafytek" means Rafytek, S.A. de C.V., a Mexican corporation.
"Rafytica" means Rafytica, S.A., a Costa Rican corporation.
"Rate Hedging Obligations" means any and all obligations of or
investments by any Borrower or any Subsidiary, whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof
and substitutions therefor), under (i) any and all agreements, devices
or arrangements designed to protect at least one of the parties
thereto from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or
exchange transactions, including, but not limited to, Canadian Dollar-
denominated or US Dollar-denominated or cross-currency interest rate
exchange agreements, forward currency exchange agreements, interest
rate cap or collar protection agreements, forward rate currency or
interest rate options, puts, warrants and those commonly known as
interest rate "swap" agreements; and (ii) any and all cancellations,
buybacks, reversals, terminations or assignments of any of the
foregoing.
"Reference Rate" means the interest rate per annum announced
publicly from time to time by NBC as being its reference rate then in
effect for determining the interest rate on commercial loans made by
NBC in Canada in Canadian Dollars or, when used in relation to US
Dollar Advances, in US Dollars.
"Regulation D" means Regulation D of the Board, as the same may
be amended or supplemented from time to time.
"Regulatory Change" means any change effective after the Closing Date
in Canadian federal or provincial laws or regulations or in United
States of America federal or state laws or regulations (including
Regulation D and capital adequacy regulations and Guideline "A" for
banks issued by the office of the Superintendent of Financial
Institutions (Canada)) or the adoption or making after the Closing
Date of any interpretations, directives or requests applying to a
class of banks, which includes any of the Lenders, under any Canadian
federal or provincial or United States of America federal or state
(whether or not having the force of law) by any governmental or
monetary authority charged with the interpretation or administration
thereof or compliance after the Closing Date by any Lender with any
request or directive regarding capital adequacy, whether or not having
the force of law, in each of the foregoing cases if failure to comply
therewith would be unlawful or result in an adverse action being taken
by such governmental or monetary authority against the applicable
Lender and if published or effective after the date hereof.
"Reimbursement Obligations" shall mean at any time, the
obligations of a Borrower to reimburse the applicable Issuing Bank and
the Canadian Revolving Credit Facility Lenders or the US Revolving
Credit Facility Lenders, as the case may be, to the extent of their
respective Participations for amounts theretofore paid by the Issuing
Bank pursuant to a drawing under any Letter of Credit to the extent
such obligations have not been satisfied by or on behalf of such
Borrower prior to such time, whether from the proceeds of a Base Rate
Refunding Loan or otherwise.
"Related Indemnified Party" has the meaning specified in SECTION
14.9.
"Related LC Documents" has the meaning given to such term in
SECTION 4.2(G)(I).
"Related Party" with respect to any Principal means (i) any
controlling stockholder, 80% (or more) owned Subsidiary, or spouse or
immediate family member (in the case of an individual) of such
Principal or (ii) trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially
holding an 80% or more controlling interest of which consist of such
Principal or such other Persons referred to in the immediately
preceding clause (i).
"Relevant Agent" means the Canadian Agent or the US Agent, as
applicable.
"Repurchase Agreement" means a repurchase agreement entered into
with any financial institution whose debt obligations or commercial
paper are rated "A" by either of S&P or ▇▇▇▇▇'▇ or "A-1" by S&P or "P-
1" by ▇▇▇▇▇'▇.
"Required Lenders" means, as of any date, Lenders on such date having
Credit Exposures (as defined below) aggregating at least 66-2/3% of
the aggregate Credit Exposures of all the Lenders on such date,
PROVIDED THAT so long as the Lenders acting as the US Agent and the
Canadian Agent on the Closing Date have Credit Exposures aggregating
at least 66-2/3% of the aggregate Credit Exposures of all Lenders,
"Required Lenders" shall mean, as of any date, the US Agent, the
Canadian Agent and at least one other Lender. For purposes of the
preceding sentence, the amount of the "CREDIT EXPOSURE" of each Lender
(i) at any time prior to the occurrence of an Acceleration Event,
shall be equal to the sum of the aggregate principal amount of such
Lender's Commitment under the Revolving Credit Facilities (unless such
Lender is a Non-Funding Lender, in which event such amount shall be
the aggregate principal amount of Loans owing to such Lender under the
Revolving Credit Facilities (including the face amount of Bankers'
Acceptances accepted by such Lender)), plus the amount of such
Lender's Applicable Commitment Percentage, if any, of Outstandings
under the Letter of Credit Facilities (unless such Lender has not
funded its Participation in a Reimbursement Obligation, in which event
such amount shall be such Lender's Applicable Commitment Percentage of
undrawn and outstanding Letters of Credit plus the amount of
Participations in outstanding Reimbursement Obligations it has funded)
plus, if the Term Loan Facilities or the Term B Loan Facility have not
been repaid or prepaid in full prior to such time, the amount of such
Lender's Commitment under the Term Loan Facilities and the Term B Loan
Facility, as applicable; and (ii) at any time after the occurrence of
an Acceleration Event, shall be equal to the aggregate principal
amount of all Outstandings owing to such Lender after taking into
account all payments actually received or made by such Lender pursuant
to SECTION 5.12 hereof; PROVIDED THAT, if any Lender shall have failed
to pay to the Canadian Issuing Bank or the US Issuing Bank, as the
case may be, its Applicable Commitment Percentage of any Reimbursement
Obligation, the Credit Exposure of such Lender attributable to such
Letters of Credit and Reimbursement Obligations shall be deemed to be
held by the Lender that is also the applicable Issuing Bank for
purposes of this definition. For purposes of SECTION 13.9, Credit
Exposures shall be determined only with respect to the Canadian
Facilities or the US Facilities or the Term B Facility, as applicable.
"Required Principal Payments" means, with respect to any Person
for any period, any regularly scheduled principal payment or any
required prepayment or redemption of Indebtedness for Money Borrowed
of such Person to be made during such period, but excluding any such
payments to the extent refinanced through the incurrence of additional
Indebtedness otherwise expressly permitted under SECTION 11.5.
"Restricted Payment" means (a) any dividend or other
distribution, direct or indirect, on account of any shares of any
class of stock of any Borrower or any Subsidiary (other than those
payable or distributable solely to a Borrower or any Guarantor) now or
hereafter outstanding, except a dividend payable solely in shares of a
class of stock to the holders of that class; (b) any redemption,
conversion, exchange, retirement or similar payment, purchase or other
acquisition for value, direct or indirect, of the principal of any
Subordinated Debt or any shares of any class of stock of any Borrower
or any Subsidiary (other than those payable or distributable solely to
a Borrower or any Guarantor) now or hereafter outstanding; and (c) any
payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of
stock of any Borrower now or hereafter outstanding.
"Revolving Credit Facilities Lender" means one or the other of
the Canadian Revolving Credit Facility Lenders and the US Revolving
Credit Facility Lenders.
"Revolving Credit Facility" means, one or the other of the
Canadian Revolving Credit Facility and the US Revolving Credit
Facility.
"Revolving Credit Loan" means, individually or collectively as
the context may require, the Canadian Revolving Credit Loans and the
US Revolving Credit Loans.
"Revolving Credit Termination Date" means the earliest to occur of (i)
the Stated Termination Date, (ii) the termination of the Revolving
Credit Facilities Lenders' Obligations pursuant to SECTION 12.1, or
(iii) the voluntary and permanent termination of all (but not less
than all) of the Revolving Credit Facilities and the Canadian Swing
Line Facility by payment in full of all Outstandings under the
Revolving Credit Facilities, the Canadian Swing Line Facility and the
Letter of Credit Facilities or cancellation or cash collateralization
pursuant to the Cash Collateral Agreement of all Letters of Credit and
Bankers' Acceptances and by termination of the Total Commitments
thereunder in accordance with SECTION 3.5.
"Royalton" has the meaning given thereto in the preamble hereof.
"Royalton Acquisition" means the Acquisition of Royalton and
Vestco in February, 1999 in accordance with the terms of SECTION 11.2
as then in effect.
"S&P" means Standard & Poor's Ratings Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies.
"Security Agreement" means, collectively (or individually as the
context may indicate), (i) that certain Security Agreement dated as of
the Original Closing Date by the Borrowers and the Guarantors (other
than Consoltex Mexico, Rafytek and Rafytica) to the US Collateral
Agent and the Canadian Collateral Trustee, (ii) that certain Security
Agreement dated as of October 22, 1999 by Marino and Walpole to the US
Collateral Agent and the Canadian Collateral Trustee, and (iii) any
additional Security Agreement delivered to the Agents pursuant to
SECTION 10.17, as hereafter modified, amended or supplemented from
time to time.
"Security Instruments" means, collectively, the Pledge Agreement,
the Security Agreement, the Mortgages, the Cash Collateral Agreement,
and all other agreements, instruments and other documents, whether now
existing or hereafter in effect, pursuant to which the Borrowers and
the Guarantors (other than Rafytek and Rafytica) shall grant or convey
to the US Agent, the Lenders, the Canadian Agent, the US Collateral
Agent or the Canadian Collateral Trustee a Lien in property as
security for all or any portion of the Obligations, including without
limitation each of the deed of hypothec and issue of bonds granted by
each of Consoltex and Consoltex Group in favor of the Canadian
Collateral Trustee, each of the bonds issued or to be issued from time
to time by each of Consoltex and Consoltex Group in favor of each of
the Lenders, each of the pledge of bond agreement granted or to be
granted from time to time by each of Consoltex and Consoltex Group in
favor of each of the Lenders, each security under Section 427 of the
BANK ACT (Canada) granted by Consoltex in favor of the Lenders under
the Canadian Facilities which are banks governed by the BANK ACT
(Canada), the conditional trademark license agreements by Consoltex in
favor of the Canadian Collateral Trustee and the special power of
attorney with respect to intellectual property by Consoltex in favor
of the Canadian Collateral Trustee, as any of them may be amended,
modified or supplemented from time to time.
"Segment" means, as the context may require, (i) a portion of the
principal amount outstanding under any Facility (or all thereof) in
the same currency with respect to which a particular interest rate is
(or is proposed to be) applicable or (ii) a portion of the principal
amount outstanding under any Canadian Facility which is utilized by
way of Bankers' Acceptances.
"Selection Notice" means a written notice in substantially the form of
EXHIBIT F delivered to the Relevant Agent by an Authorized
Representative in connection with (i) the election of a subsequent
Interest Period for any Eurodollar Rate Loan or the conversion of any
Eurodollar Rate Loan under a particular Facility into a Base Rate Loan
under such Facility or the conversion of any Base Rate Loan under a
particular Canadian Facility into a Eurodollar Rate Loan under such
Facility, (ii) the conversion of any Canadian Dollar Segment under a
particular Canadian Facility into a US Dollar Segment under such
Facility or of any US Dollar Segment under a particular Canadian
Facility into a Canadian Dollar Segment under such Facility, (iii) the
election of a subsequent period for any Bankers' Acceptances or the
conversion of any Bankers' Acceptances under a Canadian Facility into
Base Rate Loans or Eurodollar Rate Loans under such Canadian Facility
and (iv) the conversion of a Base Rate Loan or a Eurodollar Rate Loan
under a Canadian Facility into Bankers' Acceptances under such
Canadian Facility.
"Selling Lender" has the meaning given such term in SECTION 5.12.
"Solvent" means, when used with respect to any Person that at the
time of determination such Person, together with its subsidiaries on a
consolidated basis,
(i) has assets the fair value of which (both at fair
valuation and at present fair saleable value on an orderly basis)
is in excess of the total amount of its liabilities, including
contingent liabilities; and
(ii) is then able and expects to be able to pay its debts as
they mature; and
(iii) has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
"Stated Termination Date" means October 31, 2000.
"Statutory Permitted Liens" means those Permitted Liens set forth
in SECTIONS 11.4(B), (C), (D), (E), (H), (I), (J), (R), (S) AND (U).
"Stockholders Agreement" means the stockholders agreement dated
September 9, 1999 among AIP, LGHBV, Les Gantiers Limited, The Big Sky
Trust and Consoltex Group.
"Subordinated Debt" means all Obligations (as defined as of this
date in the Subordinated Indenture) with respect to the Subordinated
Notes.
"Subordinated Indenture" means that certain Indenture dated as of
September 30, 1993 among Consoltex Group, Consoltex USA, Consoltex,
Balson-Hercules, LINQ and First Trust National Association, as
Trustee, as amended from time to time in accordance with its terms.
"Subordinated Notes" has the meaning given the term "Notes" as of
this date in the Subordinated Indenture.
"Subsidiary" means (i) any subsidiary (within the meaning
ascribed to it as of the date hereof in the CANADA BUSINESS
CORPORATIONS ACT) of any Borrower or any one or more of any Borrower's
Subsidiaries, (ii) any corporation or other entity in which more than
50% of its outstanding voting stock or more than 50% of all equity
interests is owned directly or indirectly by any Borrower or by one or
more of any Borrower's Subsidiaries and (iii) any partnership or
limited partnership of which more than 50% of the outstanding units or
interests are owned directly or indirectly by any Borrower or by one
or more of any Borrower's Subsidiaries.
"Term B Borrower" means Consoltex USA.
"Term B Guarantors" means Consoltex Group, Consoltex, Balson-
Hercules, LINQ, Marino and Walpole.
"Term B Loan" means any Advance made pursuant to Tranche A of
Term B Loan Facility or Tranche B of Term B Loan Facility.
"Term B Loan Facility" means Tranche A of Term B Loan Facility
and Tranche B of Term B Loan Facility.
"Term B Loan Facility Lender" means collectively, each Lender
identified as such on EXHIBIT A hereto as being a Lender having a
Commitment under the Term B Loan Facility and each other financial
institution that is an assignee thereof and executes and delivers an
Assignment and Acceptance pursuant to SECTION 3.9 OR 14.1 in which
such institution acquires a Commitment under such Facility.
"Term B Loan Maturity Date" means October 31, 2000.
"Term B Loan Termination Date" means (i) the Term B Loan Maturity
Date or (ii) such earlier date of (A) the termination of the Lenders'
obligations pursuant to SECTION 12.1, or (B) the voluntary and
permanent termination of the Term B Loan Facility by payment in full
of all Obligations incurred in connection with the Term B Loan.
"Term Loan" means, collectively or individually as the context
may require, the Canadian Term Loan and the US Term Loan.
"Term Loan Facility" means, each of the Canadian Term Loan
Facility and the US Term Loan Facility.
"Term Loan Facility Lender" means any one or more of the Canadian
Term Loan Facility Lenders and the US Term Loan Facility Lenders.
"Term Loan Maturity Date" means October 31, 2000.
"Term Loan Termination Date" means (i) the Term Loan Maturity Date or
(ii) such earlier date of (A) the termination of the Lenders'
obligations pursuant to SECTION 12.1, or (B) the voluntary and
permanent termination of both (but not only one) of the Term Loan
Facilities by payment in full of all Obligations incurred in
connection with the Term Loans.
"Termination Event" means: (i) a "Reportable Event" described in
Section 4043 of ERISA with respect to any Pension Plan subject to
Title IV of ERISA (unless the 30-day notice requirement has been
waived); or (ii) the withdrawal of any Borrower or any ERISA Affiliate
from a Pension Plan subject to Title IV of ERISA during a plan year in
which it was a "substantial employer" as defined in Section 4001(a)(2)
of ERISA; or (iii) the termination of a Pension Plan subject to
Title IV of ERISA, the filing of a notice of intent under Section
4041(c) of ERISA to terminate any such plan or the treatment of an
amendment to any such plan as a termination under Section 4041(e) of
ERISA; or (iv) the institution of proceedings to terminate a Pension
Plan under subject to Title IV of ERISA by the PBGC; or (v) any other
event or condition which constitutes grounds under Section 4042(a) of
ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan subject to Title IV of ERISA, PROVIDED,
HOWEVER, that the event or condition described in Section 4042(a), of
ERISA shall be a Termination Event only if the PBGC shall have given
notice to the Pension Plan that it has made a determination that such
an event or condition exists; or (vi) the partial or complete
withdrawal of the Borrower or any ERISA Affiliate from a Multiemployer
Plan; or (vii) the imposition of a lien with respect to a Pension Plan
pursuant to Section 412 of the Code or Section 302 of ERISA; or (viii)
the reorganization of a Multiemployer Plan under Section 4241 of ERISA
under Foreign Benefit Law; or (ix) the termination of a Multiemployer
Plan under Section 4041A of ERISA.
"Total Commitment" means (i) with respect to the Canadian
Revolving Credit Facility, an aggregate principal amount equal to US
$20,588,235 as reduced from time to time in accordance with Section
3.5, (ii) with respect to the Canadian Term Loan Facility, an
aggregate principal amount equal to US $6,875,000, (iii) with respect
to the US Revolving Credit Facility an aggregate principal amount
equal to US $36,911,765, as reduced from time to time in accordance
with SECTION 3.5, (iv) with respect to the US Term Loan Facility an
aggregate principal amount equal to US $6,875,000 and (v) with respect
to Term B Loan Facility, an aggregate principal amount equal to US
$43,000,000, with a sublimit for Tranche A of the Term B Loan Facility
in an aggregate principal amount equal to US $25,000,000 and a
sublimit for Tranche B of the Term B Loan Facility in an aggregate
principal amount equal to US $18,000,000.
"Tranche A of Term B Loan" means the Advance of US$25,000,000
made on August 2, 1999 pursuant to the Term B Loan Facility in
accordance with ARTICLE IIA to the Facility Borrower.
"Tranche A of Term B Loan Facility" means the facility described
in ARTICLE IIA providing for the Advance in US Dollars in favor of the
Facility Borrower in the aggregate principal amount of the applicable
sublimit of the Total Commitment applicable to such Facility on August
2, 1999.
"Tranche B Funding Date" means the first date on which all of the
conditions set forth in SECTION 8.2 have been satisfied.
"Tranche B of Term B Loan" means the Advance of US$18,000,000 to
be made on the Tranche B Funding Date pursuant to the Term B Loan
Facility in accordance with ARTICLE IIA to the Facility Borrower in US
Dollars.
"Tranche B of Term B Loan Facility" means the facility described
in ARTICLE IIA providing for the Advance in US Dollars in favor of the
Facility Borrower in the aggregate principal amount of the applicable
sublimit of the Total Commitment applicable to such Facility on the
Tranche B Funding Date.
"US Agent" has the meaning given such term in the preamble
hereto.
"US Collateral Agent" means Bank of America, N.A. successor in
interest to NationsBank, National Association, or any successor
thereto, as collateral agent pursuant to the Security Instruments and
the US Agent acting in such capacity.
"US Dollars" and the symbol "US $" means dollars constituting
legal tender for the payment of public and private debts in the United
States of America and, whenever used in relation to Advances, Loans,
Segments or Letters of Credit under the Canadian Facilities, includes
the Canadian Dollars equivalent thereof.
"US Facilities Lenders" means, collectively, each of the US
Revolving Credit Facility Lenders and the US Term Loan Facility
Lenders.
"US Facility" means, one or the other of the US Term Loan
Facility and the US Revolving Credit Facility.
"US Issuing Bank" means initially Bank of America and thereafter
any US Revolving Credit Facility Lender which is the successor to Bank
of America as issuer of US Letters of Credit under ARTICLE IV.
"US Letter of Credit" means a standby or commercial letter of
credit issued under the US Revolving Credit Facility by the US Issuing
Bank for the account of an applicable Facility Borrower in favor of a
Person advancing credit to or securing an obligation on behalf of such
Facility Borrower.
"US Letter of Credit Facility" means the facility described in
ARTICLE IV hereof providing for the issuance by the US Issuing Bank
for the account of the applicable Facility Borrowers of US Letters of
Credit in an aggregate stated amount at any time outstanding not
exceeding US $5,000,000.
"US Revolving Credit Facility" means the facility described in
ARTICLE III hereof providing for Advances in US Dollars in favor or at
the request of an applicable Facility Borrower (subject to the
Consoltex Mexico Borrowing Limit) in an aggregate principal amount at
any time outstanding not exceeding the Total Commitment applicable to
such Facility at such time.
"US Revolving Credit Facility Lenders" means, collectively, each
Lender identified as such on EXHIBIT A hereto as being a Lender having
a Commitment under the US Revolving Credit Facility and each other
financial institution that is an assignee thereof and executes and
delivers an Assignment and Acceptance pursuant to SECTION 3.9 OR 14.1
in which such institution acquires a Commitment under such Facility.
"US Revolving Credit Loan" means any Loan, including without
limitation any Base Rate Refunding Loan, under the US Revolving Credit
Facility made in accordance with ARTICLE III to any Facility Borrower
thereunder (subject to the Consoltex Mexico Borrowing Limit).
"US Term Loan" means, collectively, (i) the Advance made pursuant
to the US Term Loan Facility in accordance with ARTICLE II to LINQ in
US Dollars and (ii) the Advance made pursuant to the US Term Loan
Facility in accordance with ARTICLE II to Consoltex Mexico in US
Dollars (subject to the Consoltex Mexico Borrowing Limit).
"US Term Loan Facility" means the facility described in ARTICLE
II providing for Advances in US Dollars in favor of the Facility
Borrowers (subject to the Consoltex Mexico Borrowing Limit) in the
aggregate principal amount of the Total Commitment applicable to such
Facility on the Closing Date.
"US Term Loan Facility Lenders" means, collectively, each Lender
identified as such on EXHIBIT A hereto as being a Lender having a
Commitment under the US Term Loan Facility and each other financial
institution that is an assignee thereof and executes and delivers an
Assignment and Acceptance pursuant to SECTION 3.9 OR 14.1 in which
such institution acquires a Commitment under such Facility.
"▇▇▇▇ ▇▇▇" has the meaning given thereto in the preamble hereof.
"Vestco" has the meaning given thereto in the preamble hereof.
"Walpole" has the meaning given thereto in the preamble hereof.
.. RULES OF INTERPRETATION. () All accounting terms not
specifically defined herein shall have the meanings assigned to such terms
and shall be interpreted in accordance with GAAP. In reference to the
application of GAAP, the accounting principles observed in the period
referred to shall be comparable in all material respects to those applied
in the preparation of the audited financial statements of Consoltex Group
referred to in SECTION 9.5(A).
() Each term defined in Article 1, 8 or 9 of the New York Uniform
Commercial Code shall have the meaning given therein unless otherwise
defined herein, except to the extent that the Uniform Commercial Code or
the equivalent thereto of another jurisdiction or the Civil Code of
Qubec (the "Alternate Code") is controlling in respect of attachment,
perfection, priority or enforcement, in which case such terms shall have
the meaning given in the Alternate Code.
() The headings, subheadings and table of contents used herein or in any
other Loan Document are solely for convenience of reference and shall not
constitute a part of any such document or affect the meaning, construction
or effect of any provision thereof.
() Except as otherwise expressly provided, references herein to
articles, sections, paragraphs, clauses, annexes, appendices, exhibits and
schedules are references to articles, sections, paragraphs, clauses,
annexes, appendices, exhibits and schedules in or to this Agreement.
() All definitions set forth herein or in any other Loan Document
shall apply to the singular as well as the plural form of such defined
term, and all references to the masculine gender shall include reference to
the feminine or neuter gender, and VICE VERSA, as the context may require.
() When used herein or in any other Loan Document, words such as
"Loan Document", "this agreement", "hereunder", "hereto", "hereof" and
"herein" and other words of like import shall, unless the context clearly
indicates to the contrary, refer to the whole of the applicable document,
together with all exhibits, schedules and appendices thereto, as it may be
amended, modified, supplemented or restated from time to time and not to
any particular article, section, subsection, paragraph or clause thereof.
() References to "including" means including without limiting the
generality of any description preceding such term.
() All dates and times of day specified herein without reference to
a specific location shall refer to such dates and times at Montral,
Canada and Charlotte, North Carolina, as applicable.
() References to "or" shall in each event include a reference to
"and" in the alternative.
() Each of the parties to the Loan Documents and their counsel have
reviewed and revised, or requested (or had the opportunity to request)
revisions to, the Loan Documents.
ARTICLE
THE TERM LOAN FACILITIES
.. TERM LOANS. Subject to the terms and conditions of this
Agreement, (i) each US Term Loan Facility Lender severally agrees to make
an Advance in US Dollars of the US Term Loan available to the Facility
Borrowers thereunder (subject to the Consoltex Mexico Borrowing Limit) on
the Original Closing Date on a pro rata basis determined by its Applicable
Commitment Percentage of the US Term Loan; and (ii) each Canadian Term Loan
Facility Lender severally agrees to make an Advance or accept Bankers'
Acceptances in Canadian Dollars or US Dollars (as selected by the
applicable Facility Borrower) of the Canadian Term Loan available to the
Facility Borrowers thereunder on the Original Closing Date on a pro rata
basis determined by its Applicable Commitment Percentage of the Canadian
Term Loan. The principal amount of each Segment, other than a Segment
utilized by way of Bankers' Acceptances, of the Term Loans outstanding from
time to time shall bear interest at an interest rate per annum equal to the
applicable Base Rate in effect from time to time or, at the applicable
Facility Borrower's election, the applicable Eurodollar Rate from time to
time; PROVIDED, HOWEVER, that each Eurodollar Rate Segment shall be in the
minimum amount of US $500,000 and if greater, an integral multiple of US
$100,000. No amount of the Term Loans repaid or prepaid may be reborrowed
hereunder, and no subsequent Advance of Term Loans shall be made by any
Lender after the Original Closing Date; PROVIDED, HOWEVER, Interest Periods
(including periods of Bankers' Acceptances) with respect to the Term Loans
may be elected or converted in accordance with SECTION 5.5.
.. TERM LOAN ADVANCE. On the Original Closing Date, each Term Loan
Facility Lender made the Advance of the applicable Term Loan to be made by
it on such day available by wire transfer to the Relevant Agent or, in the
case of the Canadian Term Loan Facility, accepted Banker's Acceptances
requested from it to be accepted, in the amount not exceeding in the
aggregate its Commitment with respect to the Canadian Term Loan Facility or
the US Term Loan Facility, as the case may be. Such wire transfer were
directed to the Relevant Agent at the Principal Office and were in the form
of immediately available, freely transferable Canadian Dollars or US
Dollars, as requested by the Facility Borrowers under the Canadian Term
Loan Facility, or US Dollars with respect to the US Term Loan. The amount
so received by the Relevant Agent was, subject to the terms and conditions
set forth in ARTICLE VIII, made available to the applicable Facility
Borrowers under the applicable Term Loan Facility (subject to the Consoltex
Mexico Borrowing Limit) by delivery of the proceeds thereof on the same
date and in immediately available funds to the applicable Borrowers'
Canadian Account or applicable Borrowers' US Account, as the case may be,
or otherwise as directed by an Authorized Representative and reasonably
acceptable to the Relevant Agent; PROVIDED, that if any Lender accepts
Bankers' Acceptances, SECTION 5.1(C) shall apply.
.. PAYMENT OF PRINCIPAL. The aggregate principal amount of each of
the Term Loans outstanding as of the Closing Date shall be repaid by the
applicable Facility Borrowers in five (5) consecutive quarterly
installments on the dates and in the amounts set forth below (as any of
such amounts may have been reduced at or prior to such time pursuant to
SECTIONS 2.4 AND 2.5):
US Term Loan Canadian Term Loan
DATE AMOUNT AMOUNT
December 31, 1999 US $875,000 US $875,000
March 31, 2000 US $875,000 US $875,000
June 30, 2000 US $875,000 US $875,000
September 30, 2000 US $875,000 US $875,000
October 31, 2000 All remaining All remaining
principal principal
outstanding outstanding
PROVIDED, HOWEVER, that the entire amount of Outstandings under the Term
Loan Facilities shall be due and payable in full on the Term Loan
Termination Date together with interest accrued thereon to such date.
.. OPTIONAL PREPAYMENTS. Prepayments may be made on each Term Loan
(including with respect to the face amount of Bankers' Acceptances),
PROVIDED they be made for the same amounts and at the same time for each
Term Loan, in whole or in part from time to time on any Business Day upon
not less than three (3) Business Days' prior written notice (effective upon
actual receipt) to the Agents, which notice shall be irrevocable. Any
prepayment of a Segment, whether a Base Rate Segment, a Bankers' Acceptance
Segment or a Eurodollar Rate Segment, shall be made at a prepayment price
equal to (i) the amount of principal to be prepaid, plus (ii) all accrued
and unpaid interest, if any, on the amount so prepaid, to the date of
prepayment, plus (iii) an amount equal to the interest that would have
accrued on the principal amount to be prepaid at the applicable Base Rate
for a period of 30 days following the date of such prepayment in the event
the source of funds for such prepayment is other than cash flow from
ordinary business operations. All prepayments under this SECTION 2.4 shall
be made in the minimum principal amount of US $500,000 or any integral
multiple of US $100,000 in excess thereof (or in the entire remaining
principal balance of the Term Loans), and all such prepayments of principal
shall be applied to the installments of principal set forth in SECTION 2.3
on a pro rata basis.
.. MANDATORY PREPAYMENTS. In addition to the required payments of
principal of the Term Loans set forth in SECTION 2.3 and any optional
payments of principal of the Term Loans effected under SECTION 2.4, the
following required prepayments (to be applied in ratable amounts to reduce
the Canadian Term Loan, the US Term Loan and the Term B Loan), each such
payment to be made to the Relevant Agent for the benefit of the applicable
Term Loan Facility Lenders and Term Loan B Facility Lenders, shall be made
within the time period specified below:
() A prepayment shall be made from the cash proceeds of each private
or public offering of equity securities (including without limitation
any security not constituting Indebtedness on the date of its issue
exchangeable, exercisable or convertible for or into equity
securities) of any Borrower or any Subsidiary (other than (I)
securities issued to any Borrower or another Subsidiary or securities
permitted to be sold or otherwise disposed of pursuant to SECTION
11.6(D), (F), (H) OR (I) OR 11.9(B) AND (C) and (II) up to CAN$
3,000,000 in cash proceeds from the issue of securities in connection
with the exercise of certain options undertaken with respect to the
AIP Tender) in an amount equal to one hundred percent (100%) of the
Net Proceeds of each issuance of equity securities of any Borrower or
any Subsidiary, each such prepayment to be made within one hundred
twenty (120) days after the end of the Fiscal Year in which any
Borrower received such Net Proceeds, which payment shall be
accompanied by a certificate of the Chief Financial Officer of
Consoltex Group setting forth in reasonable detail the calculations
utilized in computing the amount of such prepayment;
() A prepayment shall be made in an amount equal to fifty percent
(50%) of Excess Cash Flow for each Fiscal Year (an "Excess Cash Flow
Prepayment"), each such Excess Cash Flow Prepayment to be made within
one hundred twenty (120) days after the end of such Fiscal Year, which
payment shall be accompanied by a certificate of the Chief Financial
Officer of Consoltex Group setting forth in reasonable detail the
calculations utilized in computing Excess Cash Flow and the amount of
such prepayment;
() Prepayments shall be made in an amount equal to the amount (an
"asset deficiency amount") by which the Outstandings under the Term
Loan Facilities and Tranche A of the Term B Loan Facility on any
Business Day exceed an amount equal to fifty percent (50%) of the
aggregate book value of all Eligible Fixed Assets as set forth on the
consolidated balance sheet of Consoltex Group and its Subsidiaries
most recently delivered to the Lenders pursuant to SECTIONS 10.1(A)(I)
OR 10.1(B)(I) prior to such time, or, if none has been so delivered,
as set forth on such consolidated balance sheet described in SECTION
9.5(A), in each case such amount to be paid within fifteen (15)
Business Days after any such determination of an asset deficiency
amount and to be accompanied by a certificate of an Authorized
Representative setting forth in reasonable detail the calculations
utilized in computing the amount of such prepayment.
All mandatory prepayments made pursuant to this SECTION 2.5 shall be made,
at the option of the applicable Borrower or Borrowers, (i) in compliance
with the terms of SECTION 5.10 or (ii) to the Relevant Agents upon not less
than one (1) Business Day's prior written irrevocable notice and shall be
applied to the installments of principal set forth in SECTION 2.3 in
inverse order of their maturities with respect to prepayments made pursuant
to SECTION 2.5(A), (B) OR (C).
.. INTEREST PERIODS AND BANKERS' ACCEPTANCES. Each Term Loan shall
be, at the option of the Facility Borrowers specified in a Selection
Notice, comprised of either Eurodollar Rate Segments or Base Rate Segments
(or in the case of the Canadian Term Loan, Bankers' Acceptances Segments)
or any combination thereof.
.. PAYMENT OF INTEREST. Interest on the outstanding and unpaid
principal amount of each Term Loan (but not any Bankers' Acceptances),
commencing on the date such Loan is made to the applicable Facility
Borrower until such Segment shall be due, shall be paid at the applicable
Base Rate or Eurodollar Rate, as the case may be, as designated in the
applicable Drawdown Notice or Selection Notice.
.. USE OF PROCEEDS. The proceeds of the Term Loans shall be used
exclusively to refinance and cancel existing term indebtedness and working
capital facilities of the Borrowers.
ARTICLE IIA
THE TERM B LOAN FACILITY
2A.1. TERM B LOANS. Subject to the terms and conditions of this
Agreement, each Term B Loan Facility Lender has severally made, or agrees
severally to make, available to the Term B Borrower an Advance in US
Dollars (a) of the Tranche A of Term B Loan on August 2, 1999 on a pro rata
basis determined by such Lender's Applicable Commitment Percentage of
Tranche A of the Term B Loan and (b) of the Tranche B of Term B Loan on the
Tranche B Funding Date on a pro rata basis determined by such Lender's
Applicable Commitment Percentage of Tranche B of the Term B Loan. The
principal amount of each Segment of the Term B Loans outstanding from time
to time shall bear interest at an interest rate per annum equal to the
applicable Base Rate in effect from time to time or, at the applicable
Facility Borrower's election, the applicable Eurodollar Rate from time to
time; PROVIDED, HOWEVER, that each Eurodollar Rate Segment shall be in the
minimum amount of US $500,000 and if greater, an integral multiple of US
$100,000. No amount of the Term B Loans repaid or prepaid may be
reborrowed hereunder. No subsequent Advance of Tranche A of Term B Loans
shall be made by any Lender after August 2, 1999 and no subsequent Advance
of Tranche B of Term B Loans shall be made by any Lender after the Tranche
B Funding Date; PROVIDED, HOWEVER, Interest Periods with respect to the
Term B Loans may be elected or converted in accordance with SECTION 5.5.
2A.2. TERM B LOAN ADVANCE. On August 2, 1999, each Term B Loan
Facility Lender made the Advance of Tranche A of Term B Loan to be made by
it on such day available by wire transfer to the US Agent in the amount not
exceeding its Applicable Commitment Percentage with respect to Tranche A of
Term B Loan Facility. On the Tranche B Funding Date, each Term B Loan
Facility Lender shall make the Advance of Tranche B of Term B Loan to be
made by it on such day available by wire transfer to the US Agent in the
amount not exceeding its Applicable Commitment Percentage with respect to
Tranche B of Term B Loan Facility. Such wire transfers shall be directed
to the US Agent at its Principal Office and shall be in the form of
immediately available, freely transferable US Dollars. Subject to the
terms and conditions set forth in ARTICLE VIII, the amounts so received by
the US Agent under Tranche A of Term B Loan Facility have been made
available to the applicable Facility Borrower and the amounts so received
by the US Agent under Tranche B of Term B Loan Facility shall be made
available to the applicable Facility Borrower, in each case by delivery of
the proceeds thereof on the same date and in immediately available funds to
the applicable Borrowers' US Account or otherwise as shall be directed by
an Authorized Representative and reasonably acceptable to the US Agent.
2A.3. PAYMENT OF PRINCIPAL. The entire amount of Outstandings under
the Term B Loan Facility shall be due and payable in full on the Term B
Loan Termination Date together with interest accrued thereon to such date.
2A.4. OPTIONAL PREPAYMENTS. Prepayments may be made on the Term B Loan in
whole or in part from time to time on any Business Day upon not less than
three (3) Business Days' prior written notice (effective upon actual
receipt) to the Agents, which notice shall be irrevocable. Any prepayment
of a Segment, whether a Base Rate Segment or a Eurodollar Rate Segment,
shall be made at a prepayment price equal to (i) the amount of principal to
be prepaid, plus (ii) all accrued and unpaid interest, if any, on the
amount so prepaid, to the date of prepayment. All prepayments under this
SECTION 2A.4 shall be made in the minimum principal amount of US $500,000
or any integral multiple of US $100,000 in excess thereof (or in the entire
remaining principal balance of the Term B Loan).
2A.5. MANDATORY PREPAYMENTS. In addition to any optional payments of
principal of the Term B Loans effected under SECTION 2A.4, the Term B Loan
shall be repaid in accordance with SECTION 2.5.
2A.6. INTEREST PERIODS. Each Term B Loan shall be, at the option of
the Facility Borrowers specified in a Selection Notice, comprised of either
Eurodollar Rate Segments or Base Rate Segments or any combination thereof.
2A.7. PAYMENT OF INTEREST. Interest on the outstanding and unpaid
principal amount of each Term B Loan, commencing on the date such Loan is
made to the applicable Facility Borrower until such Segment shall be due,
shall be paid at the applicable Base Rate or Eurodollar Rate, as the case
may be, as designated in the applicable Selection Notice.
2A.8. USE OF PROCEEDS. The proceeds of the Tranche A of Term B Loans
have been used exclusively to pay the purchase price for the Marino
Acquisition (as defined in SECTION 11.2) and for working capital and other
general corporate purposes. The proceeds of the Tranche B of Term B Loans
shall be used exclusively to pay the purchase price for the Atlas
Acquisition (as defined in SECTION 11.2) and for working capital and other
general corporate purposes.
ARTICLE
THE REVOLVING CREDIT FACILITIES
.. REVOLVING LOANS.
() COMMITMENT. Subject to the terms and conditions of this
Agreement, (i) each US Revolving Credit Facility Lender severally agrees to
make Advances in US Dollars to any one or more of the Facility Borrowers
under the US Revolving Credit Facility (subject to the Consoltex Mexico
Borrowing Limit) on a pro rata basis as to each US Revolving Credit Loan
requested by such Facility Borrowers on any day determined by such Lender's
Applicable Commitment Percentage with respect to the US Revolving Credit
Facility; and (ii) each Canadian Revolving Credit Facility Lender severally
agrees to make Advances and accept Bankers' Acceptances in Canadian Dollars
or US Dollars (as selected by the applicable Facility Borrower) to the
Facility Borrowers under the Canadian Revolving Credit Facility on a pro
rata basis as to each Canadian Revolving Credit Loan requested by such
Facility Borrowers on any day determined by such Lender's Applicable
Commitment Percentage with respect to the Canadian Revolving Credit
Facility; PROVIDED, HOWEVER, that immediately after giving effect to each
such Loan, (i) the amount of Outstandings under both the US Revolving
Credit Facility and the US Letter of Credit Facility on such day shall not
exceed the Total Commitment under the US Revolving Credit Facility on such
day, (ii) the aggregate amount of Outstandings under the Canadian Revolving
Credit Facility, the Canadian Swing Line Facility and the Canadian Letter
of Credit Facility on such day shall not exceed the Total Commitment under
the Canadian Revolving Credit Facility on such day and (iii) all
Outstandings under all Facilities (other than the Term Loan Facilities and
the Term B Loan Facility) on such day shall not exceed the Borrowing Base
Availability on such day (with respect to clauses (i), (ii) and (iii), the
"Maximum Permissible Principal Amount"). Within such limits (and the
Consoltex Mexico Borrowing Limit), the Facility Borrowers under the
Revolving Credit Facilities and under the Canadian Swing Line Facility may
borrow and (under the Canadian Revolving Credit Facility only) issue
Bankers' Acceptances, pay or repay and reborrow, under the Revolving Credit
Facilities and under the Canadian Swing Line Facility on any Business Day
from the Original Closing Date until, but (as to borrowings, reborrowings
or the issuance of Banker's Acceptances) not including, the Revolving
Credit Termination Date. Bankers' Acceptances are not available, and shall
not be issued or accepted under, the US Revolving Credit Facility.
() AMOUNTS. In the event there shall be outstanding on any day (i)
Outstandings under either Revolving Credit Facility in excess of the Total
Commitment under such Facility on such day (other than as a result of a
currency determination referred to in SECTION 5.8) or (ii) Outstandings
under all of the Facilities (other than the Term Loan Facilities and the
Term B Loan Facility) in excess of the Borrowing Base Availability on such
day the Facility Borrowers under the applicable Revolving Credit Facilities
shall make such payments and prepayments on such day as shall be necessary
to satisfy such excess. Each Revolving Credit Loan hereunder, and each
conversion or continuation thereof under SECTION 5.5, other than Base Rate
Refunding Loans and Bankers' Acceptances, shall be in an amount of at least
US $100,000, and, if greater than US $100,000, an integral multiple of US
$100,000.
() LOANS. Unless otherwise agreed with the Relevant Agent, no Revolving
Credit Loan will be made unless the Relevant Agent has received an
irrevocable Drawdown Notice or Selection Notice (as applicable) prior to
11:00 A.M. (x) on the Business Day of such proposed Loan that is a Base
Rate Loan (other than Base Rate Refunding Loans to the extent the same are
effected without notice pursuant to SECTION 3.1(C)(III)), or (y) on the
third Business Day prior to such proposed Loan that is a Eurodollar Rate
Loan or (z) on the second Business Day prior to such proposed Bankers'
Acceptances under the Canadian Revolving Credit Facility. Each such notice
shall be delivered by telefacsimile transmission, or given orally to be
confirmed by telefacsimile transmission on the same Business Day, and shall
specify the Facility Borrower, the amount of the Loan, the type of Loan (US
Dollar or Canadian Dollar; Base Rate, Eurodollar Rate or Bankers'
Acceptances), the date of the Loan and, if a Eurodollar Rate Loan or
Bankers' Acceptances, the Interest Period or period. Notice of receipt of
such Drawdown Notice or Selection Notice, as the case may be, together with
the amount of each Revolving Credit Facility Lender's portion of the Loan
requested thereunder, shall be provided by the Relevant Agent to each such
Lender with reasonable promptness by telefacsimile transmission, but
(PROVIDED the Relevant Agent shall have received such notice by 11:00 A.M.)
not later than 1:00 P.M. on the same day as the Agent's receipt of such
notice.
() Not later than 2:30 P.M. on the date specified for each Loan
under this SECTION 3.1, each Lender with respect to the applicable
Revolving Credit Facility shall make the Advance to be made by it on
such day in the amount of its pro rata share, determined according to
its Applicable Commitment Percentage with respect to the applicable
Revolving Credit Facility, available by wire transfer to the Relevant
Agent. Such wire transfer shall be directed to the Relevant Agent at
the Principal Office and shall be in the form of US Dollars or, solely
with respect to the Canadian Revolving Credit Facility and as selected
by the applicable Facility Borrower, Canadian Dollars, constituting
immediately available funds. The amount so received by the Relevant
Agent shall be made available to the appropriate Facility Borrower by
delivery of the proceeds thereof on the same such date and in
immediately available funds to the applicable Borrowers' US Account or
Borrowers' Canadian Account, as the case may be, or otherwise as shall
be directed in the applicable Drawdown Notice or Selection Notice and
reasonably acceptable to the Relevant Agent; PROVIDED that if any
Lender accepts Bankers' Acceptances, SECTION 5.1(C) shall apply.
() The Facility Borrowers under the Revolving Credit Facilities
shall have the option to elect the duration of the initial and any
subsequent Interest Periods or, in the case of Bankers' Acceptances,
periods and to convert or continue the Revolving Credit Loans in
accordance with SECTION 5.5.
() Notwithstanding the foregoing, if a drawing made under a Letter of
Credit is honored by either Issuing Bank prior to the Revolving Credit
Termination Date and if the applicable conditions to making a
Revolving Credit Loan set forth in ARTICLE VIII shall then be
satisfied, the Reimbursement Obligation arising from such drawing
shall be paid to the Issuing Bank by the Relevant Agent, without the
requirement of notice (including any Drawdown Notice) to or from, or
any other action of, the applicable Facility Borrower, in immediately
available funds which shall be advanced as a Base Rate Refunding Loan
by each Canadian Revolving Credit Facility Lender or US Revolving
Credit Facility Lender, as the case may be, in a pro rata amount of
such Reimbursement Obligation, based on its Applicable Commitment
Percentage of the applicable Revolving Credit Facility. If a drawing
is presented under any Letter of Credit in accordance with the terms
thereof, then notice of such drawing or payment shall be provided
promptly by the Issuing Bank to the Relevant Agent and the applicable
Facility Borrower and such Agent shall provide notice to each Canadian
Revolving Credit Facility Lender or US Revolving Credit Facility
Lender by telephone or telefacsimile transmission. Upon notice given
to such Lenders of a drawing under any Letter of Credit by the
Relevant Agent on any Business Day, each Canadian Revolving Credit
Facility Lender or US Revolving Credit Facility Lender shall, pursuant
to the conditions specified in this SECTION 3.1(C)(III), either make a
Base Rate Refunding Loan in accordance with the first sentence of this
SECTION 3.1(C)(III) or fund the purchase of its Participation as set
forth in SECTION 4.2(C) hereof in the amount of its Applicable
Commitment Percentage of such drawing; it shall pay such amount before
2:30 P.M. on the same Business Day to the Relevant Agent for the
account of the Issuing Bank at the Principal Office in US Dollars and
in immediately available funds if the notice was given to it by the
Agent before 12:00 noon on such day or shall pay such amount before
12:00 noon on the next Business Day if the notice was given after
12:00 noon. Any such Base Rate Refunding Loan shall be advanced as,
and shall continue as, a Base Rate Loan under the applicable Revolving
Credit Facility unless and until the applicable Facility Borrower
converts such Base Rate Loan in accordance with the terms of SECTION
5.5.
.. CANADIAN SWING LINE LOANS. () Notwithstanding any other
provision of this Agreement to the contrary, in order to administer the
Canadian Revolving Credit Facility in an efficient manner, to facilitate
the payment of checks in circulation issued by Facility Borrowers, and to
minimize the transfer of funds between the Canadian Agent and the Canadian
Revolving Credit Facility Lenders, the Canadian Swing Line Facility Lender
shall make available Canadian Swing Line Loans to the Facility Borrowers
prior to the Revolving Credit Termination Date. The Canadian Swing Line
Facility Lender shall not make any Canadian Swing Line Loan pursuant hereto
(i) if, in the sole discretion of the Canadian Swing Line Lender, the
Facility Borrowers are unable to draw under the Canadian Revolving Credit
Facility because they cannot satisfy all of the conditions set forth in
SECTION 8.2 or (ii) if after giving effect to such Canadian Swing Line
Loan, the aggregate principal amount of all Canadian Swing Line Loan
Outstandings exceeds $4,000,000 or the aggregate principal amount of all
Outstandings under the Canadian Revolving Credit Facility, the Canadian
Letter of Credit Facility and the Canadian Swing Line Facility exceeds the
Total Commitment with respect to the Canadian Revolving Credit Facility.
() The Facility Borrowers under the Canadian Swing Line Facility
shall pay interest to the Canadian Swing Line Facility Lender on the
outstanding and unpaid principal amount of each Canadian Swing Line Loan
made by such Lender for the period commencing on the date when such Loan
was made until such Loan shall be due at the Base Rate with respect to the
Canadian Revolving Credit Facility then applicable. Canadian Swing Line
Loans shall be in any amount as requested by the Facility Borrowers and may
be made in U.S. or Canadian currency, at the option of the Facility
Borrowers.
() The Facility Borrowers and each Canadian Revolving Credit Facility
Lender which is or may become a party hereto acknowledge that all Canadian
Swing Line Loans are to be made solely by the Canadian Swing Line Facility
Lender to the Facility Borrowers but that such Canadian Revolving Credit
Facility Lender shall share the risk of loss with respect to such Canadian
Swing Line Loans made in accordance with the terms hereof by purchasing,
upon written demand by the Canadian Swing Line Facility Lender, pursuant to
the provisions of this SECTION 3.2(C), a Participation in each such
Canadian Swing Line Loan in an amount equal to such Canadian Revolving
Credit Facility Lender's Applicable Commitment Percentage of such Canadian
Swing Line Loan. The Canadian Swing Line Facility Lender may at any time,
and shall upon termination of the Canadian Swing Line Facility in
accordance with the terms of SECTION 3.2(D), request the applicable
Facility Borrower to repay all or any portion of the Canadian Swing Line
Loans made to such Facility Borrower and outstanding at such time and,
within three (3) Business Days of receipt of any such request, such
Facility Borrower shall repay the portion of such Canadian Swing Line Loans
so requested to be repaid (after giving effect to any repayment thereof
made pursuant to SECTION 3.2(D) AND (F)). If any of the Canadian Swing
Line Loan Outstandings are not repaid by or on behalf of the applicable
Facility Borrower when due under the immediately preceding sentence, each
Canadian Revolving Credit Facility Lender shall, according to its
Applicable Commitment Percentage of such Canadian Swing Line Loan, upon
demand made by the Canadian Swing Line Facility Lender in its discretion,
or upon the termination of the Canadian Swing Line Facility in accordance
with the terms of SECTION 3.2(D), purchase from the Canadian Swing Line
Facility Lender its Participation in each Canadian Swing Line Loan,
including interest accrued thereon, and pay the entire purchase price
therefor not later than one (1) Business Day after such demand, or notice
or knowledge of such termination (after giving effect to any repayment
thereof made pursuant to SECTION 3.2(D) AND (F)). Upon the payment by the
Canadian Revolving Credit Facility Lenders of the purchase price for their
Participation in a Canadian Swing Line Loan, the rate of interest
applicable to such Canadian Swing Line Loan shall continue at the Base Rate
hereunder. The obligation of each Canadian Revolving Credit Facility
Lender to so purchase its Participation in Canadian Swing Line Loans from
the Canadian Swing Line Facility Lender and to tender to the Canadian Swing
Line Facility Lender the entire purchase price therefor shall be absolute
and unconditional and shall not be affected by the occurrence of an Event
of Default, the availability of Revolving Credit Loans hereunder or any
other occurrence or event; PROVIDED, HOWEVER, no Canadian Revolving Credit
Facility Lender shall be obligated to purchase a Participation in any
Canadian Swing Line Loan which is made subsequent to the Revolving Credit
Termination Date.
() The Facility Borrowers at their option may request an Advance as
a Canadian Revolving Credit Loan pursuant to SECTION 3.1(A) in an amount
which, notwithstanding any of the provisions set forth in SECTION 3.1, is
sufficient to repay any or all Canadian Swing Line Loan Outstandings on any
date. The Canadian Agent shall upon the receipt of such Advance, provide
to the Canadian Swing Line Facility Lender the amount necessary to repay
such Canadian Swing Line Loan Outstandings (which the Canadian Swing Line
Facility Lender shall then apply to such repayment) and credit any balance
of the Revolving Credit Loan in immediately available funds to such
Facility Borrower's Account. Such Advance shall be a Revolving Credit Loan
made by the Canadian Revolving Credit Facility Lenders. The Canadian Swing
Line Facility shall continue in effect until the occurrence of the
Revolving Credit Termination Date.
() Checks, wire transfers, disbursements or other debits drawn or made by
a Facility Borrower against the Borrowers' Canadian Account shall
constitute a request to the Canadian Swing Line Facility Lender to make a
Loan under the Canadian Swing Line Facility in an amount in Canadian
Dollars or U.S. Dollars, as the case may be, equal to that specified on
such check or made by such wire transfer, disbursement or other debit and
SECTION 8.2(A) shall not apply in respect of such Loan.
() Notwithstanding any of the provision set forth in SECTION 14.3,
cash and moneys deposited from time to time in the Borrowers' Canadian
Account shall be deemed (without any further action of or notice by any of
the Borrowers) to be a payment made by the Facility Borrowers to the
Canadian Facility Swing Line Lender to be applied by the Canadian Swing
Line Lender in reduction of any Loan outstanding under the Canadian Swing
Line Facility.
.. PAYMENT OF INTEREST. The Facility Borrowers under the applicable
Revolving Credit Facility shall pay interest to the Relevant Agent for the
account of each Canadian Revolving Credit Facility Lender or US Revolving
Credit Facility Lender, as the case may be, on the outstanding and unpaid
principal amount of each Revolving Credit Loan (but not any Bankers'
Acceptances) made by such Lenders for the period commencing on the date
when such Loan was made until such Loan shall be due at the then applicable
Base Rate or Eurodollar Rate, as designated in the applicable Drawdown
Notice or Selection Notice.
.. PAYMENT OF PRINCIPAL. The principal amount of each Revolving
Credit Loan (including each Base Rate Refunding Loan) and each Canadian
Swing Line Loan shall be due and payable to the Relevant Agent for the
benefit of each Canadian Revolving Credit Facility Lender, Canadian Swing
Line Facility Lender or US Revolving Credit Facility Lender, as the case
may be, in full on the Revolving Credit Termination Date. The principal
amount of any Base Rate Loan and any Canadian Swing Line Loan may be
prepaid in whole or in part on any Business Day, without premium or
penalty, PROVIDED (other than for Canadian Swing Line Loans) written notice
is given to the Relevant Agent before 11:00 a.m. on such Business Day. All
prepayments of Revolving Credit Loans shall be in the amount of US
$100,000, or such greater amount which is an integral multiple of US
$100,000, or the amount equal to all Outstandings under the respective
Revolving Credit Facility on such Business Day, or such other amount as
necessary to comply with SECTION 3.1(B) or SECTION 3.5.
.. REDUCTIONS. The Facility Borrowers under the applicable Revolving
Credit Facility shall, by notice from the Chief Financial Officer of
Consoltex Group, have the right from time to time but not more frequently
than once each calendar month, upon not less than five (5) days' written
notice to the Relevant Agent from the Chief Financial Officer of Consoltex
Group, to reduce the Total Commitment of the Canadian Revolving Credit
Facility and the US Revolving Credit Facility, without penalty or premium,
and no such reduction of the Total Commitment of one Revolving Credit
Facility shall be made without an equivalent reduction of the Total
Commitment of the other Revolving Credit Facility. The Relevant Agent
shall give each Canadian Revolving Credit Facility Lender or US Revolving
Credit Facility Lender, as the case may be, within one (1) Business Day of
receipt of such notice, telefacsimile notice, or telephonic notice
(confirmed in writing), of such reduction. Each such reduction shall be in
the aggregate amount of US $500,000 or such greater amount which is in an
integral multiple of US $100,000, or the entire remaining Total Commitment
with respect to the Canadian Revolving Credit Facility and the US Revolving
Credit Facility, and shall permanently reduce the applicable Total
Commitment. Each reduction of the Total Commitment with respect to the
Canadian Revolving Credit Facility and the US Revolving Credit Facility
shall be accompanied by prepayment of the Revolving Credit Loans under such
Revolving Credit Facility to the extent that, after giving effect to such
reduction, the amount of Outstandings under such Revolving Credit Facility
plus Outstandings under the corresponding Letter of Credit Facility on the
day of such reduction exceeds the Total Commitment with respect to such
Revolving Credit Facility on such day, together with accrued and unpaid
interest on the amounts so prepaid.
.. COMMITMENT FEE. For the period beginning on the Closing Date and
ending on the Revolving Credit Termination Date, the Facility Borrowers
under each Revolving Credit Facility agree to pay to the Relevant Agent,
for the pro rata benefit of the US Revolving Credit Facility Lenders or the
Canadian Revolving Credit Facility Lenders, as the case may be, based on
their Applicable Commitment Percentages with respect to the applicable
Revolving Credit Facility, a fee calculated quarterly equal to the
Commitment Fee in effect from time to time during the applicable quarter
multiplied by the average daily amount by which the Total Commitment in
effect during the applicable quarter with respect to the applicable
Revolving Credit Facility exceeds, in the case of the US Revolving Credit
Facility, the average daily aggregate Outstandings under the US Revolving
Credit Facility during such quarter or exceeds, in the case of the Canadian
Revolving Credit Facility, the average daily aggregate Outstandings under
the Canadian Revolving Credit Facility (without giving effect to
outstanding Swing Line Loans) during such quarter plus, with respect only
to the Canadian Swing Line Facility Lender, the average daily aggregate
Outstandings under the Canadian Swing Line Facility during such quarter.
Such fees shall be due in arrears on the last Business Day of each May,
August, November and February commencing May 1996 and on the Revolving
Credit Termination Date. Notwithstanding the foregoing, so long as any
Revolving Credit Facilities Lender is a Non-Funding Lender, such fee shall
not accrue on the Commitment of such Lender until such Lender shall cease
to be a Non-Funding Lender by (i) making available to the Borrowers all
Defaulted Advances and (ii) repaying to the Relevant Agent all deficiency
advances and interest required by SECTION 3.7.
.. DEFICIENCY ADVANCES. No Revolving Credit Facility Lender shall be
responsible for any default of any other Lender under the same Facility to
make any Revolving Credit Loan or fund its purchase of any Participation
hereunder nor shall the Commitment of any Revolving Credit Facility Lender
hereunder be increased as a result of such default. Without limiting the
generality of the foregoing, in the event any Revolving Credit Facility
Lender shall fail to advance funds as herein provided, including without
limitation as a result of being in any insolvency or receivership
proceeding (a "Non-Funding Lender"), the Relevant Agent may in its
discretion, but shall not be obligated to, advance under its Commitment for
the applicable Revolving Credit Facility as a Lender all or any portion of
such amount or amounts (each, a "deficiency advance") and shall thereafter
be entitled to payments of principal of and interest on such deficiency
advance in the same manner and at the same interest rate or rates to which
such Non-Funding Lender would have been entitled had it made such Advance.
Upon payment to the Relevant Agent from such Non-Funding Lender of the
entire outstanding amount of each such deficiency advance, together with
accrued and unpaid interest thereon (from the most recent date interest was
paid to the Relevant Agent by the Facility Borrowers under the applicable
Revolving Credit Facility on each Revolving Credit Loan comprising the
deficiency advance) at the following respective rate for the following
periods: (a) for the first three days such deficiency advance shall be
outstanding, the Reference Rate in the case of the Canadian Revolving
Credit Facility, or the interest rate per annum for overnight borrowing by
the US Agent from the Federal Reserve Bank in the case of the US Revolving
Credit Facility, and (b) thereafter, at the applicable Base Rate for Base
Rate Loans under the applicable Revolving Credit Facility, then such
payment shall be credited in full payment of such deficiency advance by the
Relevant Agent and the Facility Borrowers under the applicable Revolving
Credit Facility shall be deemed to have borrowed the amount of such
deficiency advance from such other Revolving Credit Facility Lender as of
the most recent date upon which any payments of interest were made by such
Facility Borrowers thereon. Nothing in this SECTION 3.7 or otherwise in
the Loan Documents shall be construed to limit any rights the Borrowers may
have from time to time against a Non-Funding Lender.
.. USE OF PROCEEDS. The proceeds of the Loans made pursuant to the
Revolving Credit Facility and the Canadian Swing Line Facility hereunder
shall be used (a) in part to refinance and cancel existing term
indebtedness and working capital facilities of the Borrowers, (b) to pay
certain fees and expenses in connection with such refinancing and (c) for
other general corporate purposes, including but not limited to permitted
investments in Subsidiaries, Capital Expenditures, working capital
investments and debt repayments.
.. EXTENSION OF STATED TERMINATION DATE. () At least 90 but no
more than 120 days prior to the Stated Termination Date in effect at the
time of such notice with respect to each Revolving Credit Facility and
Canadian Swing Line Facility (the "Existing Stated Termination Date"), the
Borrowers may, by notice to each Agent, request an extension of the
Existing Stated Termination Date for each Revolving Credit Facility by 364
days from its then scheduled occurrence. The Agents shall promptly notify
each Lender of such request, and each such Lender under each Revolving
Credit Facility shall in turn, in its sole discretion, not later than 60
days prior to the Existing Stated Termination Date, notify the Relevant
Agent in writing as to whether such Lender will consent to such extension.
If any Lender shall fail to notify the Relevant Agent in writing of its
consent to any such request for extension of the Stated Termination Date at
least 60 days prior to the Existing Stated Termination Date, such Lender
shall be deemed to be a Non-Consenting Lender (as hereinafter defined) with
respect to such request. The Agents shall notify the Borrowers not later
than 59 days prior to the Existing Stated Termination Date of the decision
of each of the Lenders regarding the Borrower's request for an extension of
the Stated Termination Date.
() If all of the Lenders consent in writing to any request for extension
of the Stated Termination Date in accordance with subsection (a) to this
SECTION 3.9, the Existing Stated Termination Date shall, effective as at
the Existing Stated Termination Date (the "Extension Date"), be extended
for an additional 364 days. If less than all of the Lenders consent in
writing to any such request in accordance with subsection (a) of this
SECTION 3.9, the Stated Termination Date in effect at such time shall,
subject to the PROVISO below and effective as at the applicable Extension
Date, be extended as to those Lenders that so consented (each a "Consenting
Lender") but shall not be extended as to any other Lender (each such Lender
and each Lender that fails to respond to a request for extension of the
Stated Termination Date, a "Non-Consenting Lender"); PROVIDED that after
giving effect to the Commitments with respect to such Revolving Credit
Facility of all Consenting Lenders and all Assuming Lenders (as hereinafter
defined) pursuant to subsection (c) of this SECTION 3.9 and any reduction
in the Total Commitment with respect to each Revolving Credit Facility made
in accordance with SECTION 3.5, one hundred percent (100%) of the Lenders
whose aggregate amount of Commitments with respect to each Revolving Credit
Facility equal the amount of the Total Commitment with respect to such
Revolving Credit Facility consent in writing to such request for extension
of the Stated Termination Date (any written consent delivered by a
Consenting Lender pursuant to SECTION 3.9(A) satisfying such request). It
is understood and agreed that no Lender shall have any obligation
whatsoever to agree to any request made by the Borrowers for an extension
of the Stated Termination Date with respect to either Revolving Credit
Facility.
() If less than all of the Lenders consent to any such request
pursuant to subsection (a) of this SECTION 3.9, the Borrowers may arrange
not less than thirty (30) days prior to the Existing Stated Termination
Date for one or more Consenting Lenders and, to the extent the Commitment
of one or more Non-Consenting Lenders is not assumed by the Consenting
Lenders, for one or more other banks or financial institutions complying
with the requirements set forth in SECTION 14.1, to effect an assignment of
all or a portion of the Commitment of one or more Non-Consenting Lenders
(each such bank or financial institution that so qualifies and accepts an
offer to assume a Non-Consenting Lender's Commitment as of the Extension
Date being an "Assuming Lender"), to assume as of the Extension Date the
obligations of such Non-Consenting Lenders under this Agreement and the
other Loan Documents thereafter arising, without recourse to or warranty by
such Non-Consenting Lenders. The Borrowers shall deliver written notice to
each Agent and each Consenting Lender of such arrangement not less than
thirty (30) days prior to the Existing Stated Termination Date.
() On each Extension Date, each Assuming Lender shall become a
Lender for all purposes under this Agreement and the other Loan Documents
as of such Extension Date, without any further acknowledgment by or the
consent of the other Lenders, and the Commitment with respect to each
Revolving Credit Facility of each Consenting Lender shall be increased by
the amount, if any, of the Commitment with respect to either Revolving
Credit Facility of a Non-Consenting Lender that such Consenting Lender has
agreed to assume as of such Extension Date; PROVIDED, HOWEVER, that the
Relevant Agent shall have received not less than ten (10) days prior to
such Extension Date:
() an Assignment and Acceptance, effective as of such Extension
Date, from each Assuming Lender, duly executed by such Assuming Lender
and the applicable Non-Consenting Lender; and
() confirmation from each Consenting Lender that is increasing
the amount of its Commitment with respect to either Revolving Credit
Facility of the amount of such increase, in a writing satisfactory to
the Borrowers and the Relevant Agent.
() Promptly following each Extension Date, the Agents shall notify
the then existing Lenders (including, without limitation, each Assuming
Lender) and the Borrowers of the extension of the Stated Termination Date
and shall record all relevant information with respect to each Assuming
Lender on such date. Following each Extension Date, all references in this
Agreement and in the other Loan Documents to the "Stated Termination Date"
or the "Revolving Credit Termination Date" shall, with respect to each
Consenting Lender and each Assuming Lender for such Extension Date, refer
to the Stated Termination Date as so extended.
() In no circumstances shall the Stated Termination Date of a
Revolving Credit Facility be extended unless the other Revolving Credit
Facility is extended to the same later date.
ARTICLE
LETTERS OF CREDIT
.. LETTERS OF CREDIT. Each of the Issuing Banks agrees, subject to
the terms and conditions of this Agreement, upon request of a Facility
Borrower under the applicable Letter of Credit Facility and for its
account, from time to time to issue Letters of Credit under the applicable
Letter of Credit Facility. A request for issuance of a Letter of Credit
shall be made by delivery to the Issuing Bank of an Application for Letters
of Credit relating thereto in form and content reasonably acceptable to the
Issuing Bank. The Outstandings under the US Letter of Credit Facility
shall not exceed US $5,000,000 and no US Letter of Credit shall be issued
if, after giving effect thereto, Outstandings on such day shall exceed the
applicable Maximum Permitted Principal Amounts as of such day. The
Outstandings under the Canadian Letter of Credit Facility shall not exceed
US $10,000,000 and no Canadian Letter of Credit shall be issued if, after
giving effect thereto, Outstandings on such day shall exceed the applicable
Maximum Permissible Principal Amounts as of such day. No Letter of Credit
shall have an expiry date or payment date occurring later than the earlier
of one year after the date of its issuance or the 90th day after the Stated
Termination Date; PROVIDED, HOWEVER, in the event such expiry date is after
the Stated Termination Date, there shall be deposited with the Relevant
Agent on or before the Stated Termination Date an amount of cash equal to
its stated amount remaining undrawn at the date of such deposit to be held
pursuant to the terms of the applicable Cash Collateral Agreement. Letters
of Credit issued under the US Letter of Credit Facility shall be issued in
US Dollars; Letters of Credit issued under the Canadian Letter of Credit
Facility may be issued in US Dollars or in Canadian Dollars or in any other
currency acceptable to the Canadian Issuing Bank as selected by the
applicable Facility Borrower.
.. REIMBURSEMENT. () Each Facility Borrower under the applicable
Letter of Credit Facility hereby unconditionally agrees to pay to the
applicable Issuing Bank at the Principal Office for the Relevant Agent all
amounts required to pay all drafts drawn under the Letters of Credit issued
for the account of such Facility Borrower by such Issuing Bank. To the
extent permitted by SECTION 3.1(C)(III), such amounts shall be paid with
Base Rate Refunding Loans under the applicable Revolving Credit Facility.
If a Base Rate Refunding Loan may not be advanced in payment of a
Reimbursement Obligation, the applicable Facility Borrower shall pay such
amount as of the Business Day immediately following receipt of the notice
delivered pursuant to subsection (b) below.
() In accordance with the provisions of SECTION 3.1(C)(III), the
Issuing Bank shall notify the Relevant Agent and the applicable Borrower of
any drawing under any Letter of Credit promptly following the receipt by
the Issuing Bank of such drawing. Each applicable Facility Borrower agrees
to pay the Issuing Bank interest on any Reimbursement Obligations, which is
not paid by such Facility Borrower on the next Business Day after receipt
of such notice, at the applicable Default Rate in accordance with SECTION
5.9(C).
() Each Lender under a Revolving Credit Facility (other than the Issuing
Bank) shall automatically acquire on the date of issuance thereof, a
Participation in both the liability of the Issuing Bank in respect of each
Letter of Credit issued under the related Letter of Credit Facility and
each Reimbursement Obligation that may arise as a result of any drawing
under such Letter of Credit in an amount equal to its Applicable Commitment
Percentage (with respect to the related Revolving Credit Facility) of such
liability.
() If a Base Rate Refunding Loan is not Advanced in payment of
such Reimbursement Obligation and such Reimbursement Obligation is not
otherwise satisfied by or on behalf of the Facility Borrowers, then
each Canadian Revolving Credit Facility Lender or US Revolving Credit
Facility Lender, as the case may be, shall fund by payment to the
Relevant Agent (for the benefit of the Issuing Bank) in immediately
available funds the purchase from the Issuing Bank of its
Participation in a pro rata amount of the related Reimbursement
Obligation based on its Applicable Commitment Percentage of the Total
Commitment for the related Revolving Credit Facility. Such payments
shall be made at such times and in such manner as set forth in SECTION
3.1(C)(III) for a Base Rate Refunding Loan.
() The obligation of each Revolving Credit Facility Lender (other
than the applicable Issuing Bank) to make payment to the Relevant
Agent for the account of the Issuing Bank pursuant to this
SECTION 4.2(C), and the right of the Issuing Bank to receive the same,
shall be absolute and unconditional, shall not be affected by any
circumstance whatsoever and shall be made without any offset,
abatement, withholding or reduction whatsoever. If any applicable
Revolving Credit Facility Lender is obligated to pay but does not pay
amounts to the Relevant Agent for the account of the Issuing Bank in
full upon such request as required by this SECTION 4.2(C), such
Revolving Credit Facility Lender shall, on demand, pay to the Relevant
Agent for the account of the Issuing Bank interest on the unpaid
amount for each day during the period commencing on the date of notice
given to such Revolving Credit Facility Lender pursuant to SECTION
3.1(C)(III) until such Revolving Credit Facility Lender pays such
amount to the Relevant Agent for the account of the Issuing Bank in
full at, for the first three days following such notice, the interest
rate per annum for overnight borrowing by the US Agent from the
Federal Reserve Bank (or in the case of the Canadian Revolving Credit
Facility, at the Reference Rate) and thereafter at the applicable Base
Rate for Base Rate Loans under the applicable Revolving Credit
Facility.
() In the event the applicable Revolving Credit Facility Lenders
have acquired Participations in any Reimbursement Obligation as set
forth in clause (ii) above, then at any time payment (in fully
collected, immediately available funds) of such Reimbursement
Obligation, in whole or in part, is received by the Issuing Bank from
the Facility Borrowers under the applicable Letter of Credit Facility,
the Issuing Bank shall promptly pay to each such Revolving Credit
Facility Lender an amount equal to its Applicable Commitment
Percentage of such payment.
() Promptly following the end of each calendar quarter, the Issuing
Bank shall deliver to the Relevant Agent and each Facility Borrower a
notice describing the aggregate undrawn amount of all Letters of Credit at
the end of such quarter. Upon the request of any Revolving Credit Facility
Lender from time to time, the Issuing Bank shall deliver to the Relevant
Agent and each Facility Borrower, and such Agent shall deliver to such
Revolving Credit Facility Lender, any other information reasonably
requested by such Revolving Credit Facility Lender with respect to each
Letter of Credit outstanding at such time.
() The issuance by the Issuing Bank of each Letter of Credit shall, in
addition to the applicable conditions precedent set forth in ARTICLE VIII,
be subject to the conditions that such Letter of Credit be in such form and
contain such terms as shall be reasonably satisfactory to the Issuing Bank
consistent with the then current practices and procedures of the Issuing
Bank with respect to similar letters of credit, and the Facility Borrowers
under the applicable Letter of Credit Facility shall have executed and
delivered such other instruments and agreements relating to such Letters of
Credit as the Issuing Bank shall have reasonably requested consistent with
such practices and procedures. All Letters of Credit shall be issued
pursuant to and subject to the Uniform Customs and Practice for Documentary
Credits, 1993 revision, International Chamber of Commerce Publication
No. 500 and all subsequent amendments and revisions thereto.
() The Facility Borrowers under the applicable Letter of Credit
Facility agree that the Issuing Bank may, in its sole discretion, accept or
pay, as complying with the terms of any Letter of Credit, any drafts or
other documents otherwise in order which may be signed or issued by an
administrator, executor, trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, liquidator, receiver, attorney in
fact or other legal representative of a party who is authorized under such
Letter of Credit to draw or issue any drafts or other documents.
() Without limiting the Facility Borrowers' rights as set forth in
this SECTION 4.2, the obligation of the Facility Borrowers under each of
the Letter of Credit Facilities to reimburse the Issuing Bank for drawings
made under Letters of Credit in accordance with this SECTION 4.2 and the
Issuing Bank's right to receive such payment shall be absolute,
unconditional and irrevocable, and such obligations of such Facility
Borrowers shall be performed strictly in accordance with the terms of this
Agreement and such Letters of Credit and the related Applications for
Letters of Credit, under all circumstances whatsoever, including the
following circumstances:
() any lack of validity or enforceability of the Letter of
Credit, the obligation supported by the Letter of Credit or any other
agreement or instrument relating thereto (the Letters of Credit and
such other agreements and instruments being referred to collectively
as the "Related LC Documents");
() any amendment or waiver of or any consent to or departure from
all or any of the Related LC Documents;
() the existence of any claim, set-off, defense (other than the
defense of payment in accordance with the terms of this Agreement) or
other rights which any Facility Borrower under a Letter of Credit
Facility may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any persons or entities for whom
any such beneficiary or any such transferee may be acting), the
Agents, the Revolving Credit Facility Lenders or any other Person,
whether in connection with the Loan Documents, the Related LC
Documents or any unrelated transaction;
() any breach of contract or other dispute between any Facility
Borrower under a Letter of Credit Facility and any beneficiary or any
transferee of a Letter of Credit (or any persons or entities for whom
such beneficiary or any such transferee may be acting), the Agents,
the Revolving Credit Facility Lenders or any other Person;
() any draft, statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever;
() any delay, extension of time, renewal, compromise or other
indulgence or modification granted or agreed to by the Agent, with or
without notice to or approval by the applicable Facility Borrower in
respect of any of applicable Facility Borrowers' Obligations under any
Related LC Documents; or
() any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing;
() Any reimbursement payments made by any Borrower to either Issuing
Bank, or to the Relevant Agent on behalf of such Issuing Bank, shall be
made without prejudice to, and shall not constitute a waiver of, any right
such Borrower or any other Borrower may have or might acquire, as a result
of any payment by such Issuing Bank of any draft under a Letter of Credit,
the reimbursement thereof by such Borrower or any other action taken or
omitted to be taken by such Issuing Bank under or in connection with any
Letter of Credit.
.. LETTER OF CREDIT FACILITY FEES. The Facility Borrowers under a
certain Letter of Credit Facility shall, with respect to any Letter of
Credit issued thereunder, pay to the Relevant Agent, for the pro rata
benefit of the Revolving Credit Facility Lenders with respect to the
applicable Revolving Credit Facility based on their Applicable Commitment
Percentages of the Canadian Letter of Credit Facility at such time, in the
case of the Canadian Revolving Credit Facility Lenders, and of the US
Letter of Credit Facility at such time, in the case of the US Revolving
Credit Facility Lenders, a fee on outstanding Letters of Credit issued
under such Letter of Credit Facility which is determined using a rate equal
to the Applicable Margin in effect from time to time under the Revolving
Credit Facilities for Eurodollar Rate Loans. Such fees (i) under the US
Letter of Credit Facility, shall be determined based on the average daily
undrawn aggregate amount of all US Letters of Credit outstanding during the
applicable fiscal quarter and shall be due and payable quarterly in arrears
on the last day of each May, August, November and February, the first such
payment to be made on the first such date occurring after the date of
issuance of a Letter of Credit, and (ii) under the Canadian Letter of
Credit Facility, (A) in the case of each commercial or documentary Letter
of Credit, shall be determined based on the available daily amount thereof
on the basis of the number of days such Letter of Credit is outstanding and
a year of 365 days and shall be due and payable when such Letter of Credit
is drawn or otherwise expired or cancelled and (B) in the case of each
standby Letter of Credit, shall be determined on the available daily amount
thereof on the basis of the number of days in the term of such standby
Letter of Credit and a year of 365 days and shall be due and payable
quarterly in advance, with any excess for the actual available daily amount
thereunder, if any, being promptly remitted to the applicable Facility
Borrower.
.. ADMINISTRATIVE FEES. The Facility Borrowers under a certain Letter of
Credit Facility shall pay to the Issuing Bank for such Facility (a) with
respect to each Letter of Credit issued under such Facility, an issuance
fee in an amount equal to .125% of the stated amount of such Letter of
Credit, the fee to be payable on the date of issuance of such Letter of
Credit, and (b) such other reasonable and customary administrative fees, if
any, in connection with the Letters of Credit in such amounts and at such
times as the Issuing Bank and the applicable Facility Borrowers with
respect to such Letter of Credit Facility shall agree from time to time.
ARTICLE
PROVISIONS APPLICABLE TO CERTAIN FACILITIES
.. BANKERS' ACCEPTANCES
() PERIOD AND OTHER DETAILS. Bankers' Acceptances shall be for a
period of thirty (30) days to three hundred and sixty-four (364) days;
shall not allow for any day of grace; shall be signed as drawer by the
applicable Facility Borrower under the Canadian Term Loan Facility or the
Canadian Revolving Credit Facility or on its behalf by any one of the
Canadian Facility Lenders requested to accept such Bankers' Acceptances to
whom such Facility Borrower hereby gives an irrevocable power of attorney
for such purpose; shall be issued on a Business Day; and shall mature on a
Business Day which falls on or before the Term Loan Maturity Date or the
Stated Termination Date, as the case may be.
() AMOUNTS. Each Bankers' Acceptance shall be of a minimum amount
for each Canadian Facility Lender, of five hundred thousand Canadian
Dollars (CAN $500,000) and integral multiples of one hundred thousand
Canadian Dollars (CAN $100,000) in excess thereof.
() DEPOSIT IN THE ACCOUNT. An amount equal to Discounted Proceeds
relating to Bankers' Acceptances issued on any Business Day or, in the case
of a Discount Note, an amount equal to the face amount of the Discount Note
less the Discount shall be deposited by the relevant Canadian Facility
Lenders before 2:00 P.M. on such day in the Borrower's Canadian Account
unless Bankers' Acceptances are traded by the applicable Facility Borrower
on the money market in which event the Discounted Proceeds shall be
deposited by the applicable Facility Borrower before 2:00 P.M. on such day
in the Borrower's Canadian Account. The applicable Facility Borrower shall
cause an amount equal to the acceptance fee (to be distributed to the
Relevant Lenders by the Canadian Agent as contemplated in SECTION 5.1(F)
below) to be deposited before 2:00 P.M. on such day in the Borrower's
Canadian Account.
() TRADING. The applicable Facility Borrower under the Canadian
Term Loan Facility or the Canadian Revolving Credit Facility may trade the
Bankers' Acceptances (but not a Discount Note) on the money market or
directly with the Canadian Facility Lenders. The Canadian Agent shall have
no duties or liabilities with respect to such trading.
() PAYMENT. On the maturity date of any Bankers' Acceptance
outstanding, the applicable Facility Borrower shall, subject to any
conversion or election in accordance with SECTION 5.5, pay to the Canadian
Agent an amount equal to the face amount of such Bankers' Acceptance; if
such amount is not so paid or otherwise be the subject of a conversion or
election in accordance with SECTION 5.5, it shall automatically be debited
by the Canadian Agent from the Borrower's Canadian Account as a Base Rate
Advance under the Canadian Revolving Credit Facility made to the applicable
Facility Borrower.
() ACCEPTANCE FEE. Upon acceptance of a Bankers' Acceptance or the
issuance of a Discount Note, an acceptance fee equal to the Applicable
Margin, multiplied by the face amount of such Bankers' Acceptance or
Discount Note, as the case may be, and multiplying the product so obtained
by a fraction having a numerator equal to the number of days of the period
of such Bankers' Acceptance and a denominator of 365, shall be paid by the
relevant Facility Borrower to the Canadian Agent, for the account of the
applicable Canadian Facilities Lenders.
From the date and as long as amounts owed hereunder bear interest at
the Default Rate, as provided for in SECTION 5.9(C), the acceptance fee
payable pursuant to this SECTION 5.1(F) shall be equal to the Applicable
Margin increased by two percent (2%), such increase to be calculated on the
face amount of any outstanding Bankers' Acceptances for the number of days
to elapse between and including such date and the last day of the period of
such Bankers' Acceptances. The applicable Facility Borrower shall pay such
increase upon demand from the Canadian Agent for the account of the
relevant Canadian Facilities Lenders; should the Default Rate cease to be
applicable on a date which is prior to the last day of the period of the
Bankers' Acceptances, the Canadian Agent shall then make an appropriate
adjustment and upon receipt from the relevant Canadian Facilities Lenders
of the amount representing such adjustment, remit same to the applicable
Facility Borrower.
Should an increase or a decrease occur in the Applicable Margin during
the period of any outstanding Bankers' Acceptances, the acceptance fee
payable with respect to such Bankers' Acceptances pursuant to this SECTION
5.1(F) shall be equal, as from the date of such change, to the Applicable
Margin so increased or decreased, such increase or decrease to be
calculated on the face amount of such Bankers' Acceptances for the number
of days to elapse between and including such date and the last day of the
period of such Bankers' Acceptances. The relevant Borrower shall pay such
increase upon demand from the Canadian Agent for the account of the
relevant Lenders; in the case of a decrease, the Canadian Agent shall make
an appropriate adjustment and upon receipt from the relevant Lenders of the
amount representing such adjustment, remit same to the relevant Borrower.
() BANKERS' ACCEPTANCES BY NON-BA LENDERS. Whenever a Facility
Borrower under the Canadian Term Loan Facility or the Canadian Revolving
Credit Facility obtains an Advance by way of Bankers' Acceptances, each
Non-BA Lender shall, in lieu of accepting a Bankers' Acceptance, make a
Loan under such Canadian Facility evidenced by a Discount Note.
.. MANNER OF PAYMENT. () Each payment of principal (including any
prepayment) and payment of interest and fees (other than acceptance fees
referred to in SECTION 5.1(F)), and any other amount required to be paid to
a Lender with respect to a Facility shall be made to the Relevant Agent at
the Principal Office for the account of each such Lender in the currency in
which it is outstanding in immediately available funds on or before 12:30
P.M. on the date such payment is due. Following the occurrence of an
Acceleration Event, the Relevant Agent may, but shall not be obligated to,
debit the amount of such payment from any one or more ordinary deposit
accounts of a Facility Borrower under the applicable Term Loan Facility,
Term B Loan Facility, Revolving Credit Facility or Canadian Swing Line
Facility with it. Each payment of principal and payment of interest made
with respect to a Canadian Swing Line Loan shall be made to the Canadian
Swing Line Lender in the currency in which it is outstanding in immediately
available funds on or before 12:30 P.M. on the date such payment is due or
made.
() The Relevant Agent shall deem any payment that is not made in
conformity to SECTION 5.2(A) to be a non-conforming payment. Any such non-
conforming payment shall not be deemed to be received by the Relevant Agent
until (i) the day when, before 12:30 P.M., the payment funds in the
appropriate currency become available funds and (ii) if such funds become
available funds after 12:30 P.M., then the next Business Day. Any non-
conforming payment may constitute or become a Default or Event of Default.
The Canadian Swing Line Lender shall deem any payment that is not made in
conformity to SECTION 5.2(A) to be a non-conforming payment. Any such non-
conforming payment shall not be deemed to be received by the Canadian Swing
Line Lender until (i) the day when, before 12:30 P.M. the payment funds in
the appropriate currency become available funds and (ii) if such funds
become available funds after 12:30 P.M., than the next Business Day. Any
non-conforming payment may constitute or become a Default or Event of
Default.
() In the event that any payment hereunder becomes due and payable
on a day other than a Business Day, then such due date shall be extended to
the next succeeding Business Day unless provided otherwise under clauses
(ii) and (iii) of the definition of "Interest Period"; PROVIDED, HOWEVER,
that interest shall continue to accrue during the period of any such
extension; and PROVIDED FURTHER, HOWEVER, that in no event shall any such
due date with respect to any payment on the Term Loan be extended beyond
the Term Loan Maturity Date, nor shall any such due date with respect to
any payment on the Term B Loan be extended beyond the Term B Loan Maturity
Date, nor shall any such due date with respect to any payment on a
Revolving Credit Loan be extended beyond the Stated Termination Date.
.. NOTES. The Advances made under any US Facility shall be
evidenced by the Notes, payable to the order of each US Facility Lender in
the respective amount of its Applicable Commitment Percentage of the Total
Commitment for the relevant Facility, which Notes shall be dated the
Closing Date or a later date pursuant to an Assignment and Acceptance and
shall be duly completed, executed and delivered by the applicable Facility
Borrowers in accordance with the terms of this Agreement.
.. LIMITATION RELATING TO SEGMENTS. Eurodollar Rate Segments,
Bankers' Acceptances Segments, and Base Rate Segments may be outstanding at
the same time, PROVIDED, HOWEVER, there shall not be outstanding at any one
time Eurodollar Rate Segments having more than ten (10) different Interest
Periods under the Canadian Facilities and ten (10) different Interest
Periods under the US Facilities or Bankers' Acceptances Segments having
more than ten (10) different periods.
.. CONVERSIONS AND ELECTIONS OF SUBSEQUENT INTEREST PERIODS So long
as no Event of Default or Default under SECTIONS 12.1(B), (G) OR (H) has
occurred and is continuing, or no Acceleration Event has occurred, the
Facility Borrowers with respect to any certain Facility may upon delivery
of a Selection Notice to the Relevant Agent on or before 11:00 A.M.:
() on any Business Day, convert any Eurodollar Rate Segment or
any Bankers' Acceptance Segment under such Facility to a Base Rate
Segment under such Facility on the last day of the Interest Period or
period for such Segment;
() at least three (3) Business Days' prior to such election or
conversion, elect a subsequent Interest Period for any Eurodollar Rate
Segment under such Facility to begin on the last day of the then
current Interest Period for such Eurodollar Rate Segment, or convert
any Base Rate Segment under such Facility to a Eurodollar Rate Segment
under such Facility;
() at least two (2) Business Days before the last day of the then
current period of a Bankers' Acceptance Segment under such Facility,
elect a subsequent period for such Bankers' Acceptance Segment to
begin on the last day of the then current period for such Bankers'
Acceptance Segment;
() if such Facility is a Canadian Facility, at least two (2)
Business Days before the last day of the then current Interest Period
for any Eurodollar Rate Segment under such Facility, convert such
Segment to a Bankers' Acceptance Segment under such Facility to begin
on the last day of the then current Interest Period for such
Eurodollar Rate Segment;
() if such Facility is a Canadian Facility other than the
Canadian Swing Line Facility, at least two (2) Business Days before
such election or conversion, convert any Base Rate Segment under such
Facility into a Bankers' Acceptance Segment under such Facility;
() if such Facility is a Canadian Facility, at least three (3)
Business Days before the last day of the period of any Bankers'
Acceptance Segment under such Facility, convert such Bankers'
Acceptances Segment into a Eurodollar Rate Segment under such Facility
to begin on the last day of the then current period for such Bankers'
Acceptances Segment;
() if such Facility is a Canadian Facility, on any Business Day,
convert any Base Rate Segment under such Facility in Canadian Dollars
into a Base Rate Segment under such Facility in US Dollars or a Base
Rate Segment under such Facility in US Dollars into a Base Rate
Segment under such Facility in Canadian Dollars.
Each election and conversion pursuant to this SECTION 5.5 shall be
subject to the limitations set forth in the definition of "Interest Period"
herein, in SECTIONS 2.1 AND 5.4 and in ARTICLE VII. The Relevant Agent
shall give written notice to each applicable Lender of such notice prior to
3:00 P.M. on the day such notice of election or conversion is received.
All such continuations or conversions of Segments shall be effected pro
rata based on the Applicable Commitment Percentages of each Lender under
the applicable Facility. Any conversion of a Segment under a Canadian
Facility into a Base Rate Segment under such Canadian Facility made
pursuant to this Section 5.5 may be made into a Base Rate Segment in US
Dollars or Canadian Dollars.
.. DEEMED CONVERSION. If the Relevant Agent does not receive a
Selection Notice giving notice of election, conversion or continuation of
any Loan or Segment under a Facility, as the case may be, by the time
prescribed by SECTION 5.5, the Facility Borrowers with respect to the
Facility under which such Loan or Segment is outstanding shall be deemed to
have elected to convert such Loan or Segment to (or continue such Loan or
Segment as) a Canadian Dollar Base Rate Segment under the applicable
Canadian Facility or a US Dollar Base Rate Segment under the applicable US
Facility until such time as a Selection Notice is delivered to the Relevant
Agent in accordance with SECTION 5.5.
.. PRO RATA PAYMENTS. Except as otherwise provided herein, (a) each
payment or prepayment on account of principal or interest or fee under a
Facility shall be made to the Relevant Agent for the account of the Lenders
under such Facility pro rata based on their Applicable Commitment
Percentages, (b) all payments to be made by the Facility Borrowers for the
account of each of the Lenders on account of principal, interest and fees,
shall be made without diminution, set-off, recoupment or counterclaim, and
(c) the Relevant Agent will promptly distribute to the Lenders under the
applicable Facility in immediately available funds payments received in
fully collected, immediately available funds.
.. EXCHANGE RATE; CONVERSION.
() REPAYMENT. When an Advance under either Canadian Facility in
Canadian Dollars is converted into US Dollars or, as the case may be, an
Advance under either Canadian Facility in US Dollars is converted into
Canadian Dollars, the applicable Facility Borrower shall be deemed to have
repaid such Advance in the currency in which it was made and to have
borrowed a new sum in the other currency on the date of conversion
(although the conditions set forth in ARTICLE VIII need not be satisfied at
the time of such conversion).
() EXCHANGE RATE. The exchange rate for the purposes of a
disbursement under a Canadian Facility in a currency other than Canadian
Dollars, or for the purposes of a conversion from a currency into another,
or for the purposes of calculating compliance with any covenant hereunder,
shall be the conversion rate of the Bank of Canada, spot rate, at 12:00
noon on the date of such disbursement, conversion or calculation.
() FLUCTUATION IN CURRENCIES. On the last Business Day of each
month and each time the particular circumstances may require, the Canadian
Agent may establish the equivalent amount in Canadian Dollars of the
Advances then outstanding under either Canadian Facility in another
currency; such calculation shall be made at the conversion rate of the Bank
of Canada, spot rate, at 12:00 noon, on the date of such calculation.
() JUDGMENT; REALIZATION. (i) If, in order to obtain judgment in
Canada, it is necessary to convert into Canadian Dollars an amount owed in
another currency, the conversion shall be made at the conversion rate of
the Bank of Canada, spot rate, as of 12:00 noon on the Business Day prior
to the date judgment was rendered; (ii) if there is a change in the
exchange rate between the Business Day prior to the date of judgment and
the day the payment ordered by the court is made, the Facility Borrowers
under the applicable Canadian Facility shall pay on demand or, as the case
may be, shall deduct from payment, the sum, if any, required to be added
or, as the case may be, to be deducted so that the sum paid in Canadian
Dollars shall be equal to that due in the other currency after conversion
to the conversion rate of the Bank of Canada, spot rate, in effect at 12:00
noon on the day of payment. Any sum owed by a Facility Borrower under the
applicable Canadian Facility under this SECTION 5.8 shall constitute a
distinct debt, not included in any judgment which may have already been
rendered with respect thereto; and (iii) should the proceeds in Canadian
Dollars of any Collateral be distributed to a Lender, any sum owed to such
Lender in a currency other than Canadian Dollars shall be deemed converted
in Canadian Dollars at the conversion rate of the Bank of Canada, spot
rate, at 12:00 noon on the day of such distribution.
() Prepayments under the Canadian Term Loan Facility shall be made in an
amount equal to the amount by which the aggregate principal amount of the
Loans outstanding under such Facility on any Business Day exceeds the Total
Commitment under the Canadian Term Loan Facility on such Business Day as a
result of any currency determination made pursuant to SECTION 5.8(C), such
amount to be paid within two (2) Business Days following demand therefor by
the Canadian Agent and to be applied to pay such excess but not to be
applied to the installments of principal set forth in SECTION 2.3.
Prepayments under the Canadian Revolving Credit Facility shall be made in
an amount equal to the amount by which the aggregate principal amount of
the Loans outstanding under such Facility on any Business Day exceeds the
Total Commitment under the Canadian Revolving Credit Facility on such
Business Day as a result of any currency determination made pursuant to
SECTION 5.8(C), such amount to be paid within two (2) Business Days
following demand therefor by the Canadian Agent and to be applied to pay
such excess.
.. INTEREST.
() CALCULATION - CANADIAN FACILITIES. (i) The interest is
calculated each day at the rate as provided for herein, until but excluding
the day of full payment of the amount on which it accrues and in the case
of the Eurodollar Rate, it is calculated on the number of days comprised in
the applicable Interest Period; (ii) the interest is calculated daily;
(iii) the interest is calculated on the basis of a 365-day year (except for
the Eurodollar Rate which is calculated on a 360-day basis); (iv) in the
determination of the interest rate or the calculation of interest, the
interest paid shall not be deemed to have been reinvested; (v) the
Applicable Margin and fees (including acceptance fees) are calculated as
interest is calculated. For the purposes of the INTEREST ACT (Canada), in
the case of a leap year, the yearly rate of interest to which the rate of
interest calculated on a 365-day basis is equivalent shall be such rate
multiplied by three hundred and sixty-six (366) and divided by three
hundred and sixty-five (365). For the purposes of the same Act, the annual
rate of interest equivalent to the Eurodollar Rate is calculated by
dividing the amount of the interest calculated for the applicable Interest
Period by the amount of the Eurodollar Rate Segment, multiplied by a
fraction whose numerator is equal to the true number of days included in
the twelve (12) months making up the applicable year and whose denominator
is equal to the true number of days accumulated during the applicable
Interest Period.
() CALCULATION - US FACILITIES. Interest and fees with respect to
the US Facilities shall be computed on the basis of a year of 360 days
(except interest on Base Rate Loans shall be computed on the basis of a
year of 365 days) and calculated for the actual number of days (including
the first day but excluding the last day) elapsed in the period for which
such interest or fees are payable.
() DEFAULT RATE. Notwithstanding anything contained herein to the
contrary, if any amount (whether owed as principal, interest, fee or
otherwise) due under this Agreement is not paid when due (at maturity, by
acceleration or otherwise) or any Event of Default with respect to SECTION
11.1 shall have occurred and be continuing, all amounts owing under all the
Facilities shall bear interest thereafter at the Default Rate until the
Business Day (pursuant to SECTION 5.2(A)) such amount is paid in full or
the obligation of the applicable Borrower to pay such amount is waived or
such Event of Default is cured or waived.
() DATE OF PAYMENT. Interest on each Loan shall be paid (i) quarterly in
arrears on the last Business Day of each May, August, November and
February, commencing May 1996, for each Base Rate Loan and each Canadian
Swing Line Loan, (ii) on the last day of the applicable Interest Period for
each Eurodollar Rate Loan and, if such Interest Period extends for more
than three (3) months, at intervals of three (3) months after the first day
of such Interest Period or (iii) if earlier, upon payment in full of the
principal amount of such Loan.
.. PREPAYMENTS AND CASH COLLATERAL. Notwithstanding any of the
other provisions of this Agreement, if any repayment or prepayment of
Eurodollar Rate Loans, Eurodollar Rate Segments, Bankers' Acceptances (and
Discount Notes issued in lieu thereof) or Bankers' Acceptances Segments is
required to be made or is made other than on the last day of the Interest
Period therefor or period thereof, respectively, the applicable Facility
Borrower may in its sole discretion (but shall not be required to) deposit
the amount of any such repayment or prepayment in the applicable Cash
Collateral Account until the last day of such Interest Period or such
period, at which time the Relevant Agent shall be authorized (without any
further action by any Borrower) to apply such amount to the payment of such
Loan, Segment, Bankers' Acceptance or Discount Note.
.. EVIDENCE OF OBLIGATIONS. The Agents, and the Canadian Swing Line
Facility Lender, with respect to the Loans under the Canadian Swing Line
Facility, shall open and maintain in their books, accounts and records
evidencing the Loans made available by the Lenders, payments or account
thereof and all other amounts becoming due hereunder, including interest
and fees. Such accounts and records shall constitute PRIMA FACIE evidence
of the obligations of the applicable Facility Borrower under the Canadian
Facilities absent demonstrable error, and the Notes shall constitute PRIMA
FACIE evidence of the obligations of the applicable Facility Borrowers
under the US Facilities.
.. RISK PARTICIPATION AMONG LENDERS. In the event that pursuant to
the allocation of proceeds made in conformity with SECTION 12.5, the
aggregate amount of the Outstandings owing to the Canadian Lenders are not
equal to the amount of the Outstandings owing to the US Lenders, then the
Lenders to whom less Outstandings are owed (the "Participating Lenders")
shall purchase Participations in the Outstandings owing to the other
Lenders (the "Selling Lenders") in an amount by each Participating Lender
such that, after giving effect to such Participations, the Applicable
Outstanding Percentage for each Lender shall be equal to such Lender's
Applicable Total Commitment Percentage. Each Participating Lender shall
pay to the Relevant Agent for the account of the Selling Lenders in US
Dollars and in immediately available funds, an amount equal to its
Participation (as given notice thereof by the Relevant Agent) within five
(5) Business Days of receipt of such notice. Simultaneously with the
making of each such payment, each Participating Lender shall, automatically
and without any further action on the part of any Lender, acquire a
Participation in the amount of such payment in the Obligations of the
applicable Facility Borrowers related to the Outstandings in which the
Participating Lenders purchase such Participation.
ARTICLE
SECURITY
.. SECURITY. As security for the full and timely payment of all
Obligations, the following Borrowers or Guarantors shall on or before the
Original Closing Date grant for the benefit of the Lenders the following
duly perfected first priority (subject to Permitted Liens) security
interest and hypothecs:
() collateral security interest and hypothec by each of the
Borrowers and Guarantors (excluding Consoltex International, Consoltex
Mexico, Rafytek, Rafytica, Royalton, Marino Mexico, ▇▇▇▇ ▇▇▇ and
Vestco) in all Collateral;
() pledge of the bonds issued by Consoltex and Consoltex Group
and secured by the Collateral of such Borrowers;
() cross corporate guarantees of the Obligations of each of the
Borrowers by each of the Guarantors (Rafytek, Consoltex Mexico,
Rafytica, Royalton, Marino Mexico, ▇▇▇▇ ▇▇▇ and Vestco to guarantee
only the Obligations of Consoltex Mexico, Consoltex Group, Consoltex,
Rafytek, Rafytica, Royalton, Marino Mexico, Vestco and ▇▇▇▇ ▇▇▇);
() assignment, pledge and hypothec of 100% of the issued and
outstanding shares of each of the Guarantors (sixty-five percent (65%)
in the case of the voting shares of Consoltex Mexico, Rafytek,
Rafytica and Marino Mexico) with the exception of the shares issued by
Consoltex Group, Royalton, ▇▇▇▇ ▇▇▇ and Vestco,
in each case in accordance with the terms, and to the extent required in,
the applicable Security Instruments, and do all things necessary in the
reasonable opinion of the Agents and their counsel to grant to the US
Collateral Agent and the Canadian Collateral Trustee for the benefit of the
Lenders a duly perfected first priority security interest in all Collateral
subject to no prior Lien other than Permitted Liens.
.. FURTHER ASSURANCES. At the request of either Agent, the
Borrowers will or will cause their Subsidiaries, as the case may be to
execute, by their duly authorized officers, alone or with either Agent, the
US Collateral Agent or the Canadian Collateral Trustee, as applicable, any
certificate, instrument, statement or document, or to procure any such
certificate, instrument, statement or document, or to take such other
action (and pay all connected costs) which either Agent reasonably deems
necessary from time to time to create, continue or preserve the Liens in
the Collateral (and the perfection and priority thereof) of the US Agent,
the US Collateral Agent and the Canadian Collateral Trustee contemplated
hereby and by the other Loan Documents.
.. INFORMATION REGARDING COLLATERAL. Each Borrower represents, warrants
and covenants that (i) the chief executive office of such Borrower and each
of its Subsidiaries providing Collateral (each, a "Grantor") at the Closing
Date is located at the address or addresses specified on SCHEDULE 6.3, and
(ii) SCHEDULE 6.3 contains a true and complete list of (a) the name and
address of each Grantor and of each other Person that has effected any
merger or consolidation with a Grantor or contributed or transferred to a
Grantor any material property constituting Collateral at any time since
December 31, 1995 (excluding Persons making sales in the ordinary course of
their businesses to a Grantor of property constituting inventory in the
hands of such seller), (b) each location of the chief executive office of
each Grantor at any time since December 31, 1995 and (c) each location at
which any material property constituting Collateral is or has been located
since December 31, 1995 (together with the name of each owner of the real
property located at such address if not the applicable Grantor). No
Borrower shall change or permit any other Grantor to change the location of
its chief executive office or to move any material portion of the
Collateral to any location not specified in clause (c) of the immediately
preceding sentence, except upon giving not less than ten (10) Business
Days' prior written notice to each Agent and taking or causing to be taken
all such action at such Borrower's or such other Grantor's expense as may
be reasonably requested by either Agent, the US Collateral Agent or the
Canadian Collateral Trustee to perfect or maintain the perfection of the
Lien of the US Agent or the Canadian Collateral Trustee, as applicable, in
the applicable Collateral.
.. LIMITATION OF CONSOLTEX OBLIGATIONS. It is expressly agreed that
to the extent the Obligations of Consoltex under any Loan Documents involve
its guaranty of or responsibility for (or its grant of a security interest
to secure its guaranty of or responsibility for) the Obligations of
Consoltex Group, or of or for any liability of any other Guarantor with
respect to the Obligations of Consoltex Group, the amount of Consoltex's
guaranty or such responsibility (and the amount of such guaranty or
responsibility that is secured) shall not exceed the Consoltex Maximum
Amount as defined in the applicable Facility Guaranty.
ARTICLE
YIELD PROTECTION AND ILLEGALITY
.. ADDITIONAL COSTS. () The Borrowers shall within two (2)
Business Days of demand therefor by any Lender (with a copy of such demand
to the Relevant Agent) pay to the Relevant Agent for the account of such
Lender from time to time, without duplication, such amounts as such Lender
may reasonably determine to be necessary to compensate it for any costs
incurred by such Lender which it determines are attributable to its making
or maintaining any Loan or its obligation to make any Loans, or the
issuance or maintenance by an Issuing Bank, of or any other Lender's
Participation in any Letter of Credit issued hereunder, or any reduction in
any amount receivable by such Lender under this Agreement or the Bankers'
Acceptances or the Notes in respect of any of such Loans or the Letters of
Credit, including reductions in the rate of return on a Lender's capital
(such increases in costs and reductions in amounts receivable and returns
being herein called "Additional Costs"), resulting from any Regulatory
Change which: (i) changes the basis of taxation of any amounts payable to
such Lender under this Agreement or the Bankers' Acceptances or the Notes
in respect of any of such Loans or the Letters of Credit (excluding for
purposes of this SECTION 7.1 any such increased costs resulting from (A)
Taxes (as to which SECTION 7.7 shall govern), and (B) changes in the basis
of taxation of overall net income or overall gross income by the United
States, by Canada or by any other foreign jurisdiction or state under the
laws of which such Lender is organized or has its Lending Office or any
political subdivision thereof); or (ii) imposes or modifies any reserve,
special, deposit, or similar requirements relating to any extensions of
credit or other assets of, or any deposits with or other liabilities of,
such Lender (other than any such reserve, special, deposit or other similar
requirement reflected in the Prime Rate, the Reference Rate, the Federal
Funds Effective Rate or the Interbank Offered Rate, or otherwise provided
for in SECTION 7.6); or (iii) has the effect of reducing the rate of return
on capital of any such Lender to a level below that which the Lender would
have achieved but for such Regulatory Change (taking into consideration
such Lender's policies and the policies of its parent corporation with
respect to capital adequacy); PROVIDED, HOWEVER, that any demand for
Additional Costs is made by the applicable Lender within 60 days after the
date on which the officer of such Lender who has responsibility for
compliance with the obligations under this Agreement knows or has reason to
know of such Lender's right to any Additional Costs under this SECTION
7.1(A) or, if any such Lender fails to deliver such demand within such 60-
day period, such Lender shall only be entitled to compensation for any
Additional Costs from and after the date that is 60 days prior to the date
such Lender delivers such demand; and PROVIDED FURTHER, HOWEVER, that
before making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions)
to designate a different Lending Office if the making of such a designation
would avoid the need for, or reduce the amount of, such Additional Costs
and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender. A certificate as to the amount of such
Additional Costs (including the basis of calculation thereof) and an
explanation of the Regulatory Change giving rise thereto, submitted to the
Borrowers and the Relevant Agent by such Lender, shall be conclusive and
binding for all purposes, absent demonstrable error.
() Without limiting the effect of the foregoing provisions of this
SECTION 7.1, in the event that, by reason of any Regulatory Change, any
Lender either (i) incurs Additional Costs based on or measured by the
excess above a specified level of the amount of a category of deposits or
other liabilities of the Lender which includes deposits by reference to
which the interest rate on Eurodollar Rate Loans or Eurodollar Rate
Segments is determined as provided in this Agreement or a category of
extensions of credit or other assets of any Lender which includes
Eurodollar Rate Loans or Eurodollar Rate Segments or (ii) becomes subject
to restrictions on the amount of such a category of liabilities or assets
which it may hold, then (A) if the Lender so elects by notice to the other
Lenders and the Facility Borrowers, the obligation hereunder of such Lender
to make Eurodollar Rate Loans, and to convert Base Rate Segments or
Bankers' Acceptances Segments into Eurodollar Rate Segments, that are the
subject of such restrictions shall be suspended until the date such
Regulatory Change ceases to be in effect and the Borrowers shall, on the
last day(s) of the then current Interest Period(s) for outstanding
Eurodollar Rate Segments, convert such Eurodollar Rate Segments into Base
Rate Segments or Bankers' Acceptances Segments, if available and as
selected by the applicable Facility Borrowers with appropriate prior notice
having been given; PROVIDED, HOWEVER, that the suspension of such
obligation and the conversion of any Eurodollar Rate Segments into Base
Rate Segments or Bankers' Acceptances Segments, if available and as
selected by the applicable Facility Borrowers with appropriate prior notice
having been given shall apply only to any Lender who is affected by such
restrictions, and the obligation of the other Lenders to make Eurodollar
Rate Loans, and to convert Base Rate Segments or Bankers' Acceptances
Segments into Eurodollar Rate Segments, shall not be affected by such
restrictions and (B) the Facility Borrowers may, upon at least five (5)
Business Days' notice to such Lender (with a copy of such notice to the
Relevant Agent), elect that, until the circumstances causing such demand
for Additional Costs no longer apply to such Lender, all Eurodollar Rate
Loans or Eurodollar Rate Segments that would otherwise be made by such
Lender shall be made instead as Base Rate Loans or Base Rate Segments or
Bankers' Acceptances or Bankers' Acceptances Segments, if available and as
selected by the applicable Facility Borrowers with appropriate prior notice
having been given, respectively. In the event that the obligation of some,
but not all, of the Lenders to make Eurodollar Rate Loans, or to convert
Base Rate Segments or Bankers' Acceptances Segments into Eurodollar Rate
Segments, is suspended, then any request by any Borrower during the
pendency of such suspension for a Eurodollar Rate Loan or Eurodollar Rate
Segments shall be deemed a request for such Eurodollar Rate Loan or
Eurodollar Rate Segments from the Lender(s) not subject to such suspension
and for a Base Rate Loan or Base Rate Segments or Bankers' Acceptances or
Bankers' Acceptances Segments, if available and as selected by the
applicable Facility Borrowers with appropriate prior notice having been
given, from the Lender(s) who are subject to such suspension, in each case
in the respective amounts based on the Lenders' respective Applicable
Commitment Percentages as the context may require.
() Determinations by any Lender for purposes of this SECTION 7.1 of
the effect of any Regulatory Change on its costs of making or maintaining,
or being committed to make Loans, or by either Issuing Bank of the effect
of any Regulatory Change on its costs in connection with the issuance or
maintenance of, or any other Lender's Participation in, any Letter of
Credit issued hereunder, or the effect of any Regulatory Change on amounts
receivable by any Lender in respect of Loans or Letters of Credit, and of
the additional amounts required to compensate such Lender in respect of any
Additional Costs, shall be made taking into account such Lender's policies,
or the policies of the parent corporation of such Lender, as to the
allocation of capital, costs and other items. No request shall be made by
any Lender for payment of any Additional Costs under this SECTION 7.1
unless such Lender has made or is making similar requests with respect to
the same Regulatory Change of its other borrowing customers similarly
situated with the Borrowers.
.. SUSPENSION OF LOANS Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any interest rate
for any Eurodollar Rate Loan or Eurodollar Rate Segment for any Interest
Period, the Relevant Agent determines (which determination made on a
reasonable basis shall be conclusive absent demonstrable error) that:
() quotations of interest rates for the relevant deposits
referred to in the definition of "Interbank Offered Rate" in SECTION
1.1 are not being provided in the relevant amounts or for the relevant
maturities for purposes of determining the rate of interest for such
Eurodollar Rate Loan or Eurodollar Rate Segment as provided in this
Agreement; or
() the relevant rates of interest referred to in the definition
of "Interbank Offered Rate" in SECTION 1.1 upon the basis of which the
Eurodollar Rate for such Interest Period is to be determined do not
adequately reflect the cost to the Lenders of making or maintaining
such Eurodollar Rate Loan or Eurodollar Rate Segment for such Interest
Period;
then the Relevant Agent shall give the other Agent and the Authorized
Representatives prompt notice thereof, and so long as such condition
remains in effect, the Lenders shall be under no obligation to make
Eurodollar Rate Loans that are subject to such condition, or to convert
Base Rate Segments or Bankers' Acceptances Segments into Eurodollar Rate
Segments, and the Borrowers shall on the last day(s) of the then current
Interest Period(s) for all such outstanding Eurodollar Rate Segments, as
applicable, convert all such Eurodollar Rate Segments into another
Eurodollar Rate Segment if such Eurodollar Rate Segment is not subject to
the same or similar condition, or Base Rate Segments or Bankers'
Acceptances Segments, if available hereunder. The Relevant Agent shall
give the Authorized Representatives notice describing in reasonable detail
any event or condition described in this SECTION 7.2 promptly following the
determination by the Lenders that the availability of Eurodollar Rate Loans
or Eurodollar Rate Segments is, or is to be, suspended as a result thereof.
.. ILLEGALITY. Notwithstanding any other provision of this Agreement, in
the event that it becomes unlawful for any Lender to honor its obligation
to make Eurodollar Rate Loans or maintain Eurodollar Rate Segments
hereunder, then such Lender shall promptly notify the Authorized
Representatives (with a copy to the Agents) and such Lender's obligation to
make Eurodollar Rate Loans or continue Eurodollar Rate Segments, or to
convert Base Rate Segments or Bankers' Acceptances Segments into Eurodollar
Rate Segments, shall be suspended until such time as such Lender may again
make Eurodollar Rate Loans and maintain Eurodollar Rate Segments, and such
Lender's outstanding Eurodollar Rate Segments shall be converted into Base
Rate Segments or Bankers' Acceptances Segments, if available and as
selected by the applicable Facility Borrowers with appropriate prior notice
having been given in accordance with ARTICLE V or earlier if required by
applicable law. The conversion of any Eurodollar Rate Segments into Base
Rate Segments or Bankers' Acceptances Segments, if available and as
selected by the applicable Facility Borrowers with appropriate prior notice
having been given shall apply only to any Lender who is affected by such
restrictions and who has provided the notice described above, and the
obligation of the other Lenders to make Eurodollar Rate Loans, and to
convert Base Rate Segments or Bankers' Acceptances Segments into Eurodollar
Rate Segments, shall not be affected by such restrictions. In the event
that the obligation of some, but not all, of the Lenders to make Eurodollar
Rate Loans, or to convert Base Rate Segments or Bankers' Acceptances
Segments into Eurodollar Rate Segments, is so suspended, then any request
by the Borrowers during the pendency of such suspension for a Eurodollar
Rate Loan or Eurodollar Rate Segment shall be deemed a request for such
Eurodollar Rate Loan or Eurodollar Rate Segment from the Lender(s) not
subject to such suspension and for a Base Rate Loan or Base Rate Segment or
Banker's Acceptances or Bankers' Acceptances Segments, if available and as
selected by the applicable Facility Borrowers with appropriate prior notice
having been given, from the Lender(s) who are subject to such suspension,
in each case in the respective amounts based on the Lenders' respective
Applicable Commitment Percentages as the context may require.
.. COMPENSATION. The Borrowers shall promptly pay to each Lender,
upon the request of such Lender, such amount or amounts as shall be
sufficient (in the reasonable determination of such Lender) to compensate
it for any loss (excluding any loss of anticipated profits), cost or
expense reasonably incurred by it in order to pay interest to Lenders on
funds borrowed by it to make or carry its Eurodollar Rate Loans or Bankers'
Acceptances as Eurodollar Rate Segments or Bankers' Acceptances Segments,
respectively, or to liquidate or reemploy deposits or other funds acquired
by it to fund or maintain such Loan or Segment as a result of:
() any payment of face amount in respect of a Banker's Acceptance
Segment (other than a payment which consists of an amount of cash
deposited with the Canadian Agent to be held pursuant to the terms of
the Cash Collateral Agreement) on a date other than the last day of
the period of such Bankers' Acceptances Segment, or any payment
(including a payment made pursuant to an acceleration under SECTION
12.1(I)(B)), prepayment or conversion of a Eurodollar Rate Segment on
a date other than the last day of the Interest Period for such
Eurodollar Rate Segment, including in each case without limitation any
conversion required pursuant to SECTION 7.3; or
() any failure by any Borrower to borrow a Eurodollar Rate Loan
on the date for such borrowing specified in the relevant Drawdown
Notice or under ARTICLES II OR III hereof.
A determination of a Lender as to the amounts payable pursuant to this
SECTION 7.4 shall be conclusive, absent demonstrable error, PROVIDED that
such determinations are made on a reasonable basis. The Lender requesting
compensation under this SECTION 7.4 shall promptly furnish to the
Authorized Representatives and the Relevant Agent calculations in
reasonable detail setting forth such Lender's determination of the amount
of such compensation.
.. ALTERNATE LOAN AND LENDER. In the event any Lender suspends the
making of any Eurodollar Rate Loan or Eurodollar Rate Segment pursuant to
this ARTICLE VII (herein a "Restricted Lender"), the Restricted Lender's
Applicable Commitment Percentage of any Eurodollar Rate Loan or Eurodollar
Rate Segment, to the extent a Bankers' Acceptances Segment has not been
selected in accordance with this ARTICLE VII, shall bear interest at the
Base Rate or the Eurodollar Rate for which the suspension does not apply,
as selected by the applicable Borrowers, until the Restricted Lender once
again makes available the applicable Eurodollar Rate Loan or Eurodollar
Rate Segment. Notwithstanding the provisions of ARTICLES II AND III,
interest shall be payable to the Restricted Lender at the time and manner
as paid to those Lenders making available Eurodollar Rate Loans or
Eurodollar Rate Segments. Each Restricted Lender shall promptly and in any
event within five (5) Business Days give notice to the Relevant Agent and
each of the Facility Borrowers if the circumstances causing such Lender to
become a Restricted Lender no longer exist.
.. ADDITIONAL INTEREST ON EURODOLLAR RATE LOANS. The applicable
Facility Borrowers shall pay to each Lender, so long as and to the extent
such Lender has incurred additional costs to fund Eurodollar Rate Loans and
Eurodollar Rate Segments because it is required under regulations of the
Board to maintain reserves with respect to liabilities or assets consisting
of or including Eurocurrency Liabilities (as defined in Regulation D),
additional interest on the unpaid principal amount of each Eurodollar Rate
Loan or Eurodollar Rate Segment of such Lender, from the date of such
Eurodollar Rate Loan or Eurodollar Rate Segment until such principal amount
is paid in full, at an interest rate per annum equal at all times to the
remainder obtained by subtracting (a) the Interbank Offered Rate for the
applicable Interest Period for such Eurodollar Rate Loan or Eurodollar Rate
Segment from (b) the rate obtained by dividing such Interbank Offered Rate
by a percentage equal to 100% minus the Eurodollar Reserve Percentage of
such Lender for such Interest Period, payable on each date on which
interest is otherwise payable on such Eurodollar Rate Loan or Eurodollar
Rate Segment. Such Lender shall as soon as practicable provide notice to
the Relevant Agent and each of the Facility Borrowers of any such
additional interest arising in connection with such Eurodollar Rate Loan or
Eurodollar Rate Segment, which notice shall be conclusive and binding,
absent demonstrable error. A Lender that delivers a notice under this
SECTION 7.6 shall promptly notify the Relevant Agent and each of the
Facility Borrowers if the circumstances giving rise to such notice no
longer exist.
.. TAXES. () All payments by the Borrowers of principal of, and
interest on, the Loans and all other amounts payable hereunder shall be
made free and clear of and without deduction for any present or future
excise, stamp or similar taxes, fees, duties, levies, imposts, charges,
deductions, withholdings or other charges of any nature whatsoever imposed
by any taxing authority, but excluding (i) franchise taxes, (ii) any taxes
(other than withholding taxes) that would not be imposed but for a
connection between a Lender or either Agent and the jurisdiction imposing
such taxes (other than a connection arising solely by virtue of the
activities of such Lender or such Agent pursuant to or in respect of this
Agreement or any other Loan Document), (iii) any taxes imposed on or
measured by any Lender's assets, net income, receipts or branch profits,
and (iv) any taxes arising after the Closing Date solely as a result of or
attributable to a Lender changing its Lending Office after the date such
Lender becomes a party hereto ( the non-excluded items being collectively
called "Taxes"). In the event that any withholding or deduction from any
payment to be made by any Borrower hereunder is required in respect of any
Taxes pursuant to any applicable law, rule or regulation, then such
Borrower will
(x) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(y) promptly forward to the Relevant Agent an official receipt or
other documentation reasonably satisfactory to such Agent evidencing
such payment to such authority; and
(z) pay to the Relevant Agent, for the account of each Lender (or to
Bank of America as a participant of National Bank of Canada after the
occurrence of an Acceleration Event (in such event, "Bank of America
as Participant"), as applicable) such additional amount or amounts as
is necessary to ensure that the net amount actually received by each
affected Lender (and Bank of America as Participant) will equal the
full amount such Lender (or Bank of America as Participant) would have
received had no such withholding or deduction been required.
() With respect only to the US Facilities and the Term B Loan
Facility, each US Term Loan Facility Lender, US Revolving Facility Lender,
Term B Loan Facility Lender or participant organized under the laws of a
jurisdiction outside the United States prior to the date such Lender or
participant becomes a party hereto (including, as a result, of an
Assignment and Acceptance), and from time to time thereafter if either
requested by any Borrower or the US Agent or upon the obsolescence or
expiration of any previously delivered form, shall provide the US Agent and
the Borrowers with (i) two (2) original executed copies of a correct and
completed Internal Revenue Service form 1001 or 4224, as appropriate, or
any successor or other form prescribed by the Internal Revenue Service,
certifying that payments to such Lender or participant are not subject to
United States federal withholding tax under the Code because such payment
is either effectively connected with the conduct by such Lender or
participant of a trade or business in the United States or totally exempt
from United States federal withholding tax by reason of the application of
an income tax treaty to which the United States is a party or such Lender
is otherwise exempt, (ii) or to the extent permitted by law, as an
alternative to form 1001 or 4224, each such US Term Facility Lender, Term B
Loan Facility Lender or US Revolving Credit Facility Lender or participant
may provide the Borrowers and the US Agent with two original executed
copies of Internal Revenue Service Form W-8, or any successor form
prescribed by the Internal Revenue Service, certifying that such Lender is
exempt from United States federal withholding tax pursuant to Section
871(h) or 881(c) of the Code, together with an annual certificate stating
that such Lender or participant is not a "person" described in Section
871(h)(3) or 881(c)(3) of the Code and (iii) a duly completed and executed
Internal Revenue Service Form W-8 or W-9, as appropriate, or any successor
or other form establishing an exemption from United States federal backup
withholding tax. Each such Lender further agrees to complete and deliver
to any requesting Borrower such other forms or other documentation as may
be appropriate to minimize any withholding tax on payments pursuant to this
Agreement or under the Notes under the laws of any other jurisdiction
unless such completion and delivery may in any event be disadvantageous for
such Lender. For purposes of this subsection (b), the term "UNITED STATES"
shall have the meaning specified in Section 7701 of the Code.
() If any Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the applicable Agent, for
the account of the respective Lender, the required receipts or other
required documentary evidence, such Borrower shall indemnify the Lenders
for any incremental Taxes, interest or penalties that may become payable by
any Lender as a result of any such failure other than incremental Taxes,
interest or penalties arising solely as a result of the willful misconduct,
gross negligence or violation of law of the Lenders. For purposes of this
SECTION 7.7, a distribution hereunder by an Agent or any Lender to or for
the account of any Lender shall be deemed a payment by or on behalf of the
Borrowers.
() For any period with respect to which a Lender has failed to comply
with the requirements of SECTION 7.7(B) to furnish the appropriate
documentation referred to therein (OTHER THAN if such failure is due to a
change in law occurring after the date on which a form originally was
required to be provided), such Lender shall not be entitled to any payments
or indemnification under SECTION 7.7(A) OR 7.7(C) with respect to Taxes
imposed by the United States or any other jurisdiction by reason of such
failure.
() Each Lender shall use reasonable efforts (consistent with its
internal policies and with legal and regulatory restrictions) to avoid or
minimize any amounts which might otherwise be payable pursuant to this
SECTION 7.7, including, upon request of a Borrower, the change of its
Lending Office; PROVIDED, HOWEVER, that such efforts shall not include the
taking of any actions by the Lender that would result in any tax, costs or
other expense to the Lender (other than a tax, cost or expense for which
the Lender shall have been reimbursed or indemnified by a Borrower pursuant
to this Agreement or otherwise) or any action which would in the reasonable
opinion of the Lender be otherwise disadvantageous to such Lender.
() If requested by a Borrower and at such Borrower's expense, any
Lender and the Relevant Agent shall take such steps as may be appropriate
to seek a refund of any Taxes paid by it and shall permit the Borrower to
participate in the preparation of any such refund claim. If any Lender or
either Agent receives a refund in respect of any Taxes for which the Lender
has received payment from a Borrower hereunder, such Lender and the
applicable Agent, within fifteen (15) days of such receipt, shall deliver
to such Borrower the amount of such refund. In addition, any Lender and
the applicable Agent shall execute and deliver to the Borrower such
certificates, forms or other documents which can be reasonably furnished
consistent with the facts and which are reasonably necessary to assist the
Borrower in applying for refunds of Taxes remitted hereunder unless such
execution and delivery may in any event be disadvantageous to such Lender.
() The agreements in this SECTION 7.7 shall survive the payment of
the Obligations and the termination of this Agreement.
ARTICLE
CONDITIONS TO MAKING LOANS AND ISSUING LETTERS OF CREDIT
.. CONDITIONS OF CLOSING. The closing of this Agreement is subject
to the conditions precedent that the Agents shall have received on the
Closing Date, in substantially the form of the applicable Exhibit hereto
or, if there is no applicable Exhibit hereto, in form and substance
satisfactory to the Agents, the following:
() executed originals of this Agreement;
() payment of all consent and agent's fees payable by the
Borrowers on the Closing Date to the Agents and the Lenders; and
() a certificate of the Chief Financial Officer of Consoltex
Group as to the absence of any Default or Event of Default as of the
Closing Date.
.. CONDITIONS OF INITIAL ADVANCE OF TRANCHE B OF TERM B LOAN. The
obligation of the Lenders to make the Tranche B of Term B Loans is subject
to the conditions precedent that the Agents shall have received on the
Tranche B Funding Date, in substantially the form of the applicable Exhibit
hereto or, if there is no applicable Exhibit hereto, in form and substance
satisfactory to the Agents, the following:
() executed originals of each of the Notes;
() a fully-executed copy of Second Amendment to Mortgage in the
form attached hereto as EXHIBIT J;
() the favorable written opinion or opinions of Shearman &
Sterling; Young, Clement, Rivers & Tisdale, LLP; ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Gesmer each dated the Tranche B Funding Date,
addressed to the Agents and the Lenders, such opinions (other than
those relating to title) to be substantially in the form of EXHIBITS
▇-▇ ▇▇▇▇▇▇▇ ▇-▇;
() resolutions of the boards of directors or other appropriate
governing body (or of the appropriate committee thereof) of the Term B
Borrower and each Term B Guarantor (without duplication) certified by
its secretary or assistant secretary as of the Tranche B Funding Date,
approving the increase in the commitment amount applicable to the
Tranche B of the Term B Facility and approving and adopting the Loan
Documents to be executed by such Person, and authorizing the execution
and delivery thereof;
() specimen signatures of officers of the Term B Borrower and
each Term B Guarantor (without duplication), certified by the
secretary or assistant secretary of the Term B Borrower or each Term B
Guarantor as of the Tranche B Funding Date;
() certificates of the secretary or assistant secretary of the Term B
Borrower and each Term B Guarantor (without duplication), dated as of
the Tranche B Funding Date, that no change has occurred to the
organizational documents or bylaws of the Term B Borrower or the
applicable Term B Guarantor since August 2, 1999;
() certificates issued as of a recent date by the appropriate
Governmental Authority of the respective jurisdictions of formation of
the Term B Borrower and each Term B Guarantor (without duplication) as
to the due existence and good standing, where available, of the Term B
Borrower and each Term B Guarantor;
() certificate of an Authorized Representative dated the Tranche
B Funding Date demonstrating, on a pro forma basis after giving
effect to all Tranche B of Term B Loans to be made on the Tranche B
Funding Date, the Atlas Acquisition, and the application of the
proceeds thereof, compliance with the financial covenants contained in
SECTIONS 11.1(A) THROUGH 11.1(E) as of September 30, 1999,
substantially in the form of EXHIBIT I;
() Drawdown Notices, if any, and, if elected by the Borrowers,
Selection Notices;
() a commitment to update the policies insuring title on the
Initial Mortgaged Properties as originally delivered pursuant to
Section 8.1(xv) of the Existing Credit Agreement;
() a certificate of the Chief Financial Officer of Consoltex
Group as to the absence of any Default or Event of Default as of the
Tranche B Funding Date;
() a certificate of the chief financial officer of each issuer of
the Subordinated Notes, certifying that the Obligations under Tranche
B of Term B Loan Facility qualify as "Senior Debt" (as defined in the
Subordinated Indenture);
() a certified copy of the written notice by the chief financial
officer of each issuer of the Subordinated Notes to the trustee under
the Subordinated Indenture designating the Obligations under Tranche B
of Term B Loan Facility as "Designated Senior Debt" under the
Subordinated Indenture;
() evidence satisfactory to the Agents of the completion of the
AIP Tender in accordance with its terms without waiver thereof not
acceptable to the Agents;
() a certified copy of the Stockholders Agreement;
() the Agents and the Lenders shall have received on or before
the Tranche B Funding Date payment of all upfront fees payable by the
Borrowers in connection with Advances under the Tranche B of Term B
Loan Facility made on the Tranche B Funding Date; and
() copies of all additional agreements, instruments and documents
which the Agent or the Lenders may reasonably request, such documents,
when appropriate, to be certified by appropriate governmental
authorities.
For purposes of determining compliance with the conditions
specified in SECTION 8.1, each Lender shall be deemed to have consented to,
approved or accepted or to be satisfied with each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to the Lenders unless an officer of the Relevant Agent
responsible for the transactions contemplated by this Agreement shall have
received notice from such Lender prior to the making of the initial Loans
specifying its objection thereto and such Lender shall not have made
available to the Relevant Agent such Lender's ratable portion of the Loans
to be made on the Tranche B Funding Date.
.. CONDITIONS OF REVOLVING LOANS. The obligations of the Lenders to
make any Loan, and the Issuing Banks to issue Letters of Credit, hereunder
on or subsequent to the Closing Date or the Tranche B Funding Date are
subject to the satisfaction of the following conditions (it being
understood and agreed that the conversion or continuation of any Loan or
Segment shall not require the satisfaction of any of the conditions
precedent set forth in this SECTION 8.2):
() the Agents shall have received Drawdown Notices as required by
ARTICLES II OR III;
() the representations and warranties of the Borrowers and
Guarantors set forth in ARTICLE IX and in each of the other Loan
Documents shall be correct in all material respects on and as of the
date of such Loan or issuance of a Letter of Credit, with the same
effect as though such representations and warranties had been made on
and as of such date, except (i) to the extent that such
representations and warranties expressly relate to an earlier date,
(ii) that the financial statements referred to in SECTION 9.5(A)(I)
shall be deemed to be those financial statements of Consoltex Group
most recently delivered to the Agents and the Lenders pursuant to
SECTION 10.1(A)(I) after the date financial statements are delivered
to the Agents and the Lenders in accordance with such Section and
(iii) that SECTIONS 9.4, 9.17 AND 9.12 shall refer to Schedules
referred to therein as most recently updated and delivered together
with the financial statements referred to in SECTION 10.1(A) and that
SECTIONS 9.7, 9.9 AND 9.15 shall refer to Schedules referred to
therein as most recently updated and delivered together with the
financial statements referred to in SECTION 10.1(B);
() in the case of the issuance of a Letter of Credit, the
appropriate Borrower shall have executed and delivered to the Issuing
Bank an Application for Letter of Credit in form and content
reasonably acceptable to the Issuing Bank, together with such other
instruments and documents as it shall reasonably request;
() at the time of (and after giving effect to) each Loan or the
issuance of a Letter of Credit, no Default or Event of Default shall
have occurred and be continuing and no Acceleration Event shall have
occurred; and
() the giving effect to the requested Loan or the issuing of the
requested Letter of Credit shall not cause the Outstandings under any
Facility to exceed the applicable Maximum Permitted Principal Amount
or, in the case of either US Facility, the Consoltex Mexico Borrowing
Limit.
ARTICLE
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants with respect to itself and to
its Subsidiaries (which representations and warranties shall survive the
delivery of the documents mentioned herein and the making of Loans), that:
.. ORGANIZATION AND AUTHORITY.
() Each Borrower and each Guarantor is a corporation duly
organized and validly existing under the laws of the jurisdiction of
its formation;
() Each Borrower and each Guarantor (x) has the requisite power,
authority, permits and authorizations (including without limitation
those under Environmental Laws) to own its properties and assets and
to carry on its business as now being conducted, except where the
failure to have any such permits or authorizations would not have a
Material Adverse Effect, and (y) is qualified to do business in every
jurisdiction in which failure so to qualify would have a Material
Adverse Effect;
() Each Borrower has the power and authority to execute, deliver
and perform this Agreement and the Notes, and to borrow hereunder, and
to execute, deliver and perform each of the other Loan Documents to
which it is a party;
() Each Guarantor has the power and authority to execute, deliver
and perform the Facility Guaranty and each of the other Loan Documents
to which it is a party; and
() When executed and delivered, each of the Loan Documents to
which any Borrower or any Guarantor is a party will be the legal,
valid and binding obligation or agreement, as the case may be, of such
Borrower or such Guarantor, enforceable against such Borrower or such
Guarantor in accordance with its terms, subject to the effect of any
applicable bankruptcy, moratorium, insolvency, reorganization or other
similar law affecting the enforceability of creditors' rights
generally and to the effect of general principles of equity (whether
considered in a proceeding at law or in equity).
.. LOAN DOCUMENTS. The execution, delivery and performance by each
Borrower and each Guarantor of each of the Loan Documents to which it is a
party:
() have been duly authorized by all requisite corporate action
(including any required shareholder approval) of each Borrower and
each Guarantor required for the lawful execution, delivery and
performance thereof;
() do not violate any provisions of (i) applicable law, rule or
regulation, (ii) any judgment, writ, order, determination, decree or
arbitral award of any Governmental Authority or arbitral authority
binding on any Borrower or any Guarantor or its properties, except
where such violation would not reasonably be expected to result in a
Material Adverse Effect or (iii) the charter documents or bylaws of
any Borrower or any Guarantor;
() do not conflict with, result in a breach of or constitute an
event of default, or an event which, with notice or lapse of time or
both, would constitute an event of default, under any contract,
indenture, agreement or other instrument or document to which any
Borrower or any Guarantor is a party, or by which the properties or
assets of any Borrower or any Guarantor are bound, except where such
conflict, breach or event of default would not reasonably be expected
to result in a Material Adverse Effect; and
() do not result in the creation or imposition of any Lien upon
any of the properties or assets of any Borrower or any Guarantor
except any Liens in favor of the US Collateral Agent, the Canadian
Collateral Trustee, the Agents and the Lenders created under the
Security Instruments.
.. SOLVENCY. Each Borrower and each Guarantor (other than Rafytek
and Rafytica) is Solvent after giving effect to the Facilities and other
transactions contemplated by the Loan Documents.
.. SUBSIDIARIES, STOCKHOLDERS, SHAREHOLDERS AGREEMENTS. No Borrower
has any Subsidiaries other than those Persons as of the Closing Date listed
as Subsidiaries in SCHEDULE 9.4 and additional Subsidiaries created or
acquired after the Closing Date in compliance with SECTION 10.17; SCHEDULE
9.4 states as of the Closing Date the organizational form of each
Subsidiary listed thereon, the authorized and issued capitalization of each
such Subsidiary, the number of shares or other equity interests of each
class of capital stock or interest issued and outstanding of each such
Subsidiary and the number or percentage of outstanding shares or other
equity interest (including options, warrants and other rights to acquire
any interest) of each such class of capital stock or other equity interest
owned by any Borrower or by any such Subsidiary; the outstanding shares or
other equity interests of each such Subsidiary have been duly authorized
and validly issued and are fully paid and nonassessable; and each Borrower
and each such Subsidiary owns beneficially and of record all the shares and
other interests in other Subsidiaries that it is listed as owning in
SCHEDULE 9.4, free and clear of any Lien (other than Liens created under
the Security Instruments and Statutory Permitted Liens); there are no
shareholders agreement existing among the shareholders of the Borrowers.
.. FINANCIAL CONDITION.
() Consoltex Group has heretofore furnished to each Lender an
audited consolidated balance sheet of Consoltex Group and its
Subsidiaries as at December 31, 1998 and the notes thereto and the
related consolidated statements of income, stockholders' equity and
cash flows for the Fiscal Year then ended, as examined and certified
by PriceWaterhouseCoopers, LLP. Except as set forth therein, such
financial statements (including the notes thereto) present fairly the
financial condition of Consoltex Group and its Subsidiaries as of the
end of such Fiscal Year and results of their operations and the
changes in its stockholders' equity for the Fiscal Year then ended,
all in conformity with GAAP;
() since December 31, 1998 there has been no Material Adverse Effect
(solely as defined in clause (i) of the definition thereof), nor have
such businesses or properties of the Borrowers and their Subsidiaries,
taken as a whole, been materially and adversely affected as a result
of any fire, explosion, earthquake, accident, strike, lockout,
combination of workers, flood, embargo or act of God; and
() except as permitted by SECTION 11.5 as of the Original Closing
Date, as of the Closing Date no Borrower nor any Subsidiary has
incurred, other than in the ordinary course of business, any material
Indebtedness which remains outstanding or unsatisfied.
.. TITLE TO PROPERTIES. Each Borrower and each Guarantor has good
and marketable title to all its real and personal properties that
constitute Collateral to which a Lien is intended to be perfected or are
included in the Borrowing Base and to all of its other material real and
personal properties, subject to no other Liens of any kind, except for
Permitted Liens.
.. TAXES. Except as set forth in SCHEDULE 9.7 as of the Original
Closing Date, each Borrower and Guarantor and each of its Subsidiaries has
filed or caused to be filed all material federal, state and local tax
returns which, to the knowledge of such Borrower or such Guarantor or
Subsidiaries with respect to such local tax returns, are required to be
filed by it and, except for taxes and assessments being contested in good
faith by appropriate proceedings and against which reserves have been
established in accordance with GAAP, have paid or caused to be paid all
taxes as shown on said returns or on any assessment received by it, to the
extent that such taxes or assessments have become due.
.. OTHER AGREEMENTS. No Borrower nor any Subsidiary is in default
in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any agreement or instrument to which
any Borrower or any Subsidiary is a party, which default would reasonably
be likely to have, a Material Adverse Effect.
.. LITIGATION. Except as set forth in SCHEDULE 9.9 as of the
Original Closing Date, there is no action, suit or proceeding at law or in
equity or by or before any governmental instrumentality or agency or
arbitral body pending, or, to the knowledge of any Borrower, overtly
threatened by or against any Borrower or any Subsidiary or any Employee
Benefit Plan thereof or affecting any Borrower or any Subsidiary or any
Employee Benefit Plan thereof or any properties or rights of the Borrower
or any Subsidiary, in which there is a reasonable likelihood of an adverse
determination which would reasonably be likely to have a Material Adverse
Effect.
.. MARGIN STOCK. The proceeds of the Advances made, Letters of Credit
issued and Bankers' Acceptances accepted hereunder will be used by the
respective Borrowers only for the purposes set forth in SECTIONS 2.8 AND
3.7, respectively. None of such proceeds will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin stock or
for the purpose of reducing or retiring any Indebtedness which was
originally incurred to purchase or carry margin stock or for any other
purpose which might constitute any of the Loans under this Agreement a
"purpose credit" within the meaning of Regulation U (12 C.F.R. Part 221) or
Regulation X (12 C.F.R. Part 224) of the Board. No Borrower nor any agent
acting in its behalf has taken or will take any action which might cause
this Agreement or any of the documents or instruments delivered pursuant
hereto to violate any regulation of the Board or to violate the Securities
Exchange Act of 1934, as amended, or the Securities Act of 1933, as
amended, or any state securities laws, in each case as in effect on the
date hereof.
.. INVESTMENT COMPANY. No Borrower nor any Subsidiary is an
"investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (15 U.S.C.
80a-1, ET SEQ.). The application of the proceeds of the Loans
and repayment thereof by the Borrowers and the performance by the Borrowers
and the Guarantors of the transactions contemplated by the Loan Documents
will not violate any provision of said Act, or any rule, regulation or
order issued by the Securities and Exchange Commission thereunder, in each
case as in effect on the date hereof.
.. PATENTS, ETC. Except as set forth in SCHEDULE 9.12 as of the
Original Closing Date, each Borrower and each Guarantor owns or has the
right to use, under valid license agreements or otherwise, all material
patents, licenses, franchises, trademarks, trademark rights, trade names,
trade name rights and trade secrets necessary for the conduct of its
businesses as now conducted, without known conflict with any patent,
license, franchise, trademarks, trade secret, trade name, other proprietary
right of any other Person. No Borrower, Guarantor or any Subsidiary owns,
or has the right to use under valid license agreements or otherwise, any
material copyrights.
.. NO UNTRUE STATEMENT. All written information, exhibits and
reports furnished by or on behalf of the Borrowers and the Guarantors to
the Agents and the Lenders in connection with the negotiation and
preparation of the Loan Documents (other than any projections and budgets
delivered thereto pursuant to SECTION 10.1(E) or otherwise) do not contain
any untrue statement of a material fact or, considered as a whole, omit to
state a material fact necessary to make the statements made therein, in
light of the circumstances under which any such statements were made, not
misleading.
.. NO CONSENTS, ETC. Neither the respective businesses or properties
of any Borrower or any Guarantor, nor any relationship between any Borrower
or any Guarantor and any other Person, nor any circumstance in connection
with the execution, delivery and performance of the Loan Documents and the
transactions contemplated thereby, is such as to require a consent,
approval or authorization of, or filing, registration or qualification
with, any Governmental Authority or any other Person on the part of any
Borrower or any Subsidiary as a condition to the execution, delivery and
performance of, or consummation of the transactions contemplated by, the
Loan Documents which, if not obtained or effected, would be reasonably
likely to have a Material Adverse Effect, or if so, which consent,
approval, authorization, filing, registration or qualification has been
duly obtained or effected, as the case may be, except for (a) filings,
recordings and consents required in connection with the perfection of
security interests granted pursuant to the Loan Documents and (b) various
consents, approvals and authorizations that may be required for the Agents
and the Lenders to take certain remedies provided to them under the terms
of the Loan Documents, PROVIDED, HOWEVER, the exception under this clause
(b) shall not apply to the acceleration of the maturity of the Loans in
accordance with SECTION 12.1(A).
.. EMPLOYEE BENEFIT PLANS, PENSION PLANS AND CANADIAN EMPLOYEE PENSION
PLANS. () Each Employee Benefit Plan and Pension Plan that is intended to
be qualified under Section 401(a) of the Code has been determined by the
Internal Revenue Service to be so qualified, and each trust related to such
plan has been determined to be exempt under Section 501(a) of the Code or a
determination letter concerning such qualification has been requested,
except where failure to so qualify would not reasonably been likely to have
a Material Adverse Effect. No material liability has been incurred which
remains unsatisfied for any taxes or penalties with respect to any Employee
Benefit Plan, Pension Plan or any Multiemployer Plan of a Borrower or with
respect to a Pension Plan or Multiemployer Plan by an ERISA Affiliate that
would be reasonably likely to have a Material Adverse Effect or is being
contested in accordance with the standards set forth in SECTION 10.4(B);
() No Borrower has (i) engaged in a nonexempt prohibited transaction
described in Section 4975 of the Code or Section 406 of ERISA affecting any
of the Employee Benefit Plans or Pension Plans or the trusts created
thereunder which could subject any such plan or trust to a material tax or
penalty on prohibited transactions imposed under Internal Revenue Code
Section 4975 or ERISA that would reasonably be likely to have a Material
Adverse Effect, (ii) incurred any accumulated funding deficiency with
respect to any Pension Plan, whether or not waived, or any other liability
to the PBGC which remains outstanding other than the payment of premiums
and there are no premium payments which are due and unpaid, that, in each
case, would be reasonably likely to have a Material Adverse Effect
(iii) failed to make a required contribution or payment to a Multiemployer
Plan that would be reasonably likely to have a Material Adverse Effect;
() No Termination Event has occurred or is expected to occur that
would be reasonably likely to have a Material Adverse Effect;
() The present value of all vested accrued benefits under each
Pension Plan subject to Title IV of ERISA, did not, as of the most recent
valuation date for each such plan, exceed the then current value of the
assets of such Pension Plan allocable to such benefits by an amount that is
reasonably expected to have a Material Adverse Effect;
() To the best of each Borrower's knowledge, each Employee Benefit
Plan and Pension Plan has been administered in accordance with its terms in
all material respects and is in compliance in all material respects with
all applicable requirements of ERISA and other applicable laws, regulations
and rules, except where the failure to so comply would not reasonably be
likely to have a Material Adverse Effect;
() The Employee Benefit Plans of the Borrowers and the Subsidiaries
that are not subject to the laws of the United States or Canada are funded
to the extent they are required to be funded in accordance with applicable
law, except to the extent any failure to comply would not reasonably be
likely to have a Material Adverse Effect;
() Each Canadian Employee Pension Plan that is intended to be
registered with a Governmental Authority is so registered, except where
failure to be so registered would not reasonably been likely to have a
Material Adverse Effect. No material liability has been incurred which
remains unsatisfied for any taxes or penalties with respect to any Canadian
Employee Pension Plan that would be reasonably likely to have a Material
Adverse Effect or is being contested in accordance with the standards set
forth in SECTION 10.4(B);
() Neither Consoltex, nor Consoltex Group has (i) engaged in a
transaction affecting any of the Canadian Employee Pension Plans or the
trusts created thereunder which could subject any such plan or trust to a
tax or penalty under Part XI of the INCOME TAX ACT, that would be
reasonably likely to have a Material Adverse Effect, or (ii) incurred any
accumulated funding deficiency with respect to any Canadian Employee
Pension Plan which remains outstanding other than the payment of
contributions to amortize such funding deficiency according to Canadian
Benefit Law and there are no contributions which are due and unpaid, that
in each case, would be reasonably likely to have a Material Adverse Effect;
() No Canadian Termination Event has occurred or is expected to
occur that would be reasonably likely to have a Material Adverse Effect;
() To the best of each Consoltex and Consoltex Group's knowledge,
each Canadian Employee Pension Benefit Plan has been administered in
accordance with its terms in all material respects and is in compliance in
all material respects with all applicable requirements of Canadian Benefit
Law, except where the failure to so comply would not reasonably be likely
to have a Material Adverse Effect; and
() Set forth on SCHEDULE 9.15 is a list of each Employee Benefit
Plan and Canadian Employee Pension Plan as of the Original Closing Date
sponsored by any Borrower or Guarantor. As of the date hereof, no Borrower
or Guarantor sponsors a Pension Plan, a Multiemployer Plan or any pension
or retirement plan other than (i) any pension or retirement plan subject to
the laws of the United States or Canadian Benefit Law and (ii) the
obligations under the law of Mexico with respect to seniority premiums
payable to employees of Rafytek, Royalton, Marino Mexico, Vestco and ▇▇▇▇
▇▇▇.
.. ENVIRONMENTAL MATTERS. Except as set forth in the quarterly
environmental report most recently delivered to the Agents pursuant to
SECTION 10.1(F) and based on the best knowledge of the Notice Officers, (i)
each Borrower and each Subsidiary is in compliance with all applicable
Environmental Laws, except where the failure to so comply would not
reasonably be likely to have a Material Adverse Effect and (ii) no Borrower
nor any Subsidiary has been notified of any pending or threatened action,
suit, proceeding or investigation which calls into question compliance by
any Borrower or any Subsidiary with any Environmental Laws or suggests that
any Borrower or Subsidiary is a potentially responsible party with regard
to any release or threatened release of a Hazardous Material, or which
seeks to suspend, revoke or terminate any license, permit or approval of
such Borrower or such Subsidiary necessary for the operation of any
facility of any Borrower or Subsidiary or for the generation, handling,
storage, treatment or disposal of any Hazardous Material.
.. EMPLOYMENT MATTERS. Except as set forth in SCHEDULE 9.17 as of the
Closing Date attached hereto, none of the employees of any Borrower or any
Subsidiary is subject to any collective bargaining agreement and there are
no strikes, work stoppages, election or decertification petitions or
proceedings, unfair labor charges, equal opportunity proceedings, or other
material labor or employee related controversies or proceedings pending or,
to the knowledge of any Borrower, overtly threatened against any Borrower
or any Subsidiary or between any Borrower or any Subsidiary and any of its
employees in which there is a reasonable likelihood of an adverse
determination and which would reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect.
.. RICO. No Borrower nor any Subsidiary is engaged in or has
engaged in any course of conduct that would reasonably be expected to
subject any of their respective properties to any Lien, seizure or other
forfeiture under any criminal law, racketeer influenced and corrupt
organizations law, civil or criminal, or other similar laws.
ARTICLE
AFFIRMATIVE COVENANTS
Until all the Obligations have been paid and satisfied in full, no
Letter of Credit remains outstanding and this Agreement has been terminated
in accordance with the terms hereof, unless the Required Lenders shall
otherwise consent in writing, each Borrower will, and will cause each
Subsidiary with respect to SECTIONS 10.2 THROUGH 10.8, inclusive, and 10.12
to:
.. FINANCIAL REPORTS, ETC. () As soon as practical and in any event
within one hundred twenty (120) days (90 days in the case of Consoltex
Group's audited consolidated financial statements and one hundred eighty
(180) days in the case of Rafytek, Consoltex Mexico and Rafytica) after the
end of each Fiscal Year (without duplication), deliver or cause to be
delivered to each Agent and each Lender (i) the audited consolidated and
unaudited consolidating balance sheet of Consoltex Group and its
Subsidiaries, in each case as at the end of such Fiscal Year, and the notes
thereto, and the related consolidated and consolidating statements of
income, consolidated statements of stockholders' equity and consolidated
statements of cash flows, and the respective notes thereto, for such Fiscal
Year, setting forth comparative financial statements for the preceding
Fiscal Year, all prepared in accordance with GAAP and containing, with
respect to the consolidated financial statements of Consoltex Group and its
Subsidiaries, an opinion of PriceWaterhouseCoopers, LLP, or other such
independent certified public or chartered accountants selected by Consoltex
Group and approved by the Agents, which approval shall not be unreasonably
withheld or delayed, which is unqualified as to the scope of the audit
performed, the "going concern" status of Consoltex Group or any other
matter or issue not reasonably acceptable to the Required Lenders, and
accompanied (in the case of financial statements of any Borrower or
Guarantor other than Consoltex Group) by a certificate of an Authorized
Representative to the effect that such financial statements present fairly
the financial condition of such Borrower or Guarantor (as the case may be)
as of the end of such Fiscal Year and the results of their operations and
the changes in their financial position for such Fiscal Year, (ii) a
certificate of the Chief Financial Officer of Consoltex Group demonstrating
compliance with SECTIONS 11.1(A) THROUGH 11.1(E) AND 11.3 for the
measurement period or date therefor ending on the last day of such Fiscal
Year, which certificate shall be substantially in the form of EXHIBIT I and
(iii) updates or supplements to SCHEDULES 9.4, 9.12 AND 9.17, respectively,
if and to the extent necessary to ensure that the representations set forth
in SECTIONS 9.4, 9.12 AND 9.17, respectively, are correct in all material
respects as of the date of delivery of such updates or supplements;
() as soon as practical and in any event within 45 days after the end of
each fiscal quarter (except the last fiscal quarter of the Fiscal Year) of
Consoltex Group (without duplication), deliver to each Agent and each
Lender (i) consolidated and consolidating balance sheet of Consoltex Group
and its Subsidiaries, in each case as at the end of such fiscal quarter,
and the consolidated and consolidating related statements of income,
consolidated statements of stockholders' equity and consolidated statements
of cash flows for such fiscal quarter and for the period from the beginning
of the then current Fiscal Year through the end of such fiscal quarter, and
accompanied by a certificate of the Chief Financial Officer of Consoltex
Group to the effect that such consolidated financial statements present
fairly the financial position of Consoltex Group and its Subsidiaries, as
of the end of such fiscal quarter and the results of their operations and
the changes in their financial position for such fiscal quarter, all of
such interim financial statements being prepared in conformity with GAAP,
subject however to normal, recurring year-end audit adjustments, (ii) a
certificate of the Chief Financial Officer of Consoltex Group containing
computations for such quarter comparable to that required pursuant to
SECTION 10.1(A)(II) for the measurement period therefor ending on the last
day of such fiscal quarter and (iii) updates or supplements to SCHEDULES
9.7, 9.9 AND 9.15, respectively, if and to the extent necessary to ensure
that the representations set forth in SECTIONS 9.7, 9.9 AND 9.15,
respectively, are correct in all material respects as of the date of
delivery of such updates and schedules;
() together with each delivery of the consolidated financial
statements required by SECTION 10.1(A)(I), deliver to each Agent and each
Lender a letter from Consoltex Group's accountants stating that in
performing the audit necessary to render the opinion on the consolidated
financial statements delivered under SECTION 10.1(A)(I), they obtained no
knowledge of any Default or Event of Default by Consoltex Group or any
other Borrower in the fulfillment of the terms and provisions of this
Agreement insofar as they relate to financial matters; or if the
accountants have obtained knowledge of such Default or Event of Default, a
statement specifying the nature thereof and, if readily determinable, the
period of existence thereof;
() promptly after becoming available to any Borrower, such Borrower
shall deliver to each Agent and each Lender a copy of (i) all regular or
special reports or effective registration statements which such Borrower or
any Subsidiary shall file with the Securities and Exchange Commission (or
any successor thereto) or the "Commission des valeurs mobilire du
Qubec" or any other securities exchange commission and (ii) any proxy
statement distributed by such Borrower or any Subsidiary to its
shareholders, bondholders or the financial community in general;
() as soon as practicable and in any event within 30 days following
the end of each Fiscal Year, deliver to each Agent and each Lender
consolidated and consolidating budgets and consolidated and consolidating
quarterly financial projections (including balance sheets and statements of
income and cash flows) for each Borrower (or Guarantor, as the case may be)
and its Subsidiaries for the next Fiscal Year;
() as soon as practicable and in any event within sixty (60) days
following the end of each fiscal quarter of each Borrower deliver to each
Agent and each Lender an environmental report prepared by such applicable
Borrower with respect to the Mortgaged Properties, in form and substance
reasonably satisfactory to the Agents, and (to the extent and in the form
actually reported to the board of directors of the applicable Borrower) any
other manufacturing facilities;
() as soon as practicable and in any event within thirty-five (35)
days after the end of each calendar month, Consoltex Group shall deliver to
each Agent and each Lender a Borrowing Base Certificate prepared as of the
end of such month;
() on Wednesday of each week, LINQ and Balson-Hercules shall deliver
to the US Agent and each Lender an accounts receivable aging report showing
their Accounts Receivable as of the close of business on the preceding
Friday;
() promptly, from time to time, deliver or cause to be delivered to each
Agent and each Lender such other information regarding any Borrower's, any
Guarantor's, and any Subsidiary's operations, business affairs and
financial condition as such Agent or such Lender, through either Agent, may
reasonably request.
The Agents and the Lenders are hereby authorized to deliver a copy of
any such financial or other information delivered hereunder to the Lenders
(or any affiliate of any Lender) or to either Agent, to any Governmental
Authority having jurisdiction over either Agent or any of the Lenders
pursuant to any written request therefor or in the ordinary course of
examination of loan files, or, subject to the confidentiality provisions of
SECTION 14.10, to any other Person who shall acquire or consider the
assignment of, or acquisition of any participation interest in, any
Obligation permitted by this Agreement; PROVIDED, HOWEVER, that the
Relevant Agent and each applicable Lender agree to notify the applicable
Borrower promptly of any such request for the disclosure of any such
financial or other information from any Governmental Authority unless such
notification is prohibited by applicable law, rule or regulation or by
judicial process.
.. MAINTAIN PROPERTIES. Maintain all properties necessary to its
operations in good working order and condition, ordinary wear and tear
excepted, and make all needed repairs, replacements and renewals to such
properties, except in the case of any worn-out or obsolete property
described in SECTION 11.6(K), and maintain all material trademarks, trade
names, patents, copyrights, trade secrets, know-how and other information
(or adequate licenses thereto), in each case as are reasonably necessary to
conduct its business as conducted from time to time, all in accordance with
customary and prudent business practices.
.. EXISTENCE, QUALIFICATION, ETC. Except as otherwise expressly
permitted under SECTION 11.8, do or cause to be done all things necessary
to preserve and keep in full force and effect its existence and all
material rights and franchises, and maintain its license or qualification
to do business as a foreign corporation and good standing in each
jurisdiction in which its ownership or lease of property or the nature of
its business makes such license or qualification necessary, except where
the failure to maintain such rights, franchises or foreign license or
qualification would not reasonably be expected to result in a Material
Adverse Effect; PROVIDED, HOWEVER, that any Borrower or Subsidiary may be
dissolved in connection with the transfer of its assets to a Borrower or
Guarantor permitted by SECTION 11.8.
.. LAWS, REGULATIONS AND TAXES. () Observe and comply with or
contest in good faith by appropriate proceedings all laws, rules,
regulations and requirements of any Governmental Authorities, except where
the failure to do so would not reasonably be likely to have a Material
Adverse Effect, and (b) pay all material taxes, assessments and
governmental charges, all material claims for labor, supplies, rent and all
other material obligations which, if unpaid, would become a Lien against
any of its properties except in the case of any such liabilities being
contested in good faith by appropriate proceedings and against which
adequate reserves are being maintained in accordance with GAAP.
.. INSURANCE. () Maintain, and cause each of its Subsidiaries to
maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks (including without
limitation all-risk property damage, business interruption, general
liability and workers compensation insurance) as is usually carried by
companies engaged in similar businesses and owning similar properties in
the same general areas in which such Borrower or such Subsidiary operates,
which insurance may provide for reasonable deductibles from the coverage
provided thereunder; PROVIDED, HOWEVER, that the Borrowers and their
Subsidiaries may self-insure only with respect to the repair and
replacement of vehicles, and in such case to the same extent as other
companies engaged in similar businesses and owning similar properties in
the same general areas in which any such Borrower or such Subsidiary
operates and consistent with prudent business practice.
() The Borrowers shall duly and punctually pay or cause to be paid
the premiums and other sums of money payable under each of its insurance
policies required to be maintained hereunder. Each Mortgaged Property
insurance policy held by the Borrowers shall contain a "Standard Mortgage
Clause" reasonably satisfactory to the Agents providing that such policy
may be canceled or modified only upon thirty (30) days' prior written
notice to the Agents. The insurance policies confirming the insurance
hereunder shall not contain any co-insurance stipulations except as
provided in paragraph (a) of this SECTION 10.5.
() Each policy of property damage insurance of a Borrower or a
Guarantor that is providing Collateral shall provide for all losses (except
for losses of less than US $2,500,000 per occurrence) to be paid directly
to the US Agent and the US Collateral Agent or the Canadian Agent and the
Canadian Collateral Trustee and to such Borrower or such Guarantor, as the
case may be, as their interests may appear.
() At least ten (10) Business Days before the expiration of any
policy referred to in this SECTION 10.5(A), the Borrowers shall provide the
Agents with proof of its renewal or its replacement failing which the
Agents may, upon reasonable prior notice, renew or replace same at the
expense of the Borrowers, without prejudice to any other right conferred to
the Agents in such event. It is agreed that the Agents are under no
obligation either to note the expiration date of any policy or to insure
the renewal or continuance of any policy. The Borrowers shall, from time
to time, at the reasonable request of the Agents, furnish the Agents such
information relating to insurance as the Agents may reasonably require. If
the Borrowers fail to comply with any provision of this SECTION 10.5, the
Agents may, after delivery of reasonable notice to the Borrower and at the
Borrowers' expense, obtain any insurance they deem necessary.
() The Borrowers shall promptly notify the Agents of any loss or damage
to any material portion of the Collateral and shall promptly take any
measures reasonably necessary so that the applicable insurer under any
property casualty insurance shall pay the respective insurance proceeds to
the Agents, the Borrowers or other Persons (as permitted by this Agreement
and the other Loan Documents). Reimbursement under any liability insurance
maintained by any Borrower or any Guarantor pursuant to this SECTION 10.5
may be paid directly to the Person who shall have incurred liability
covered by such insurance. In case of any loss involving damage to any
Mortgaged Property, Equipment or any Inventory when the next succeeding
paragraph is not applicable, the Borrower or the Guarantor that owns such
Mortgaged Property, Equipment or Inventory shall make or cause to be made
the necessary repairs to or replacements of such Mortgaged Property,
Equipment or Inventory, and any proceeds of insurance properly received and
maintained by such Borrower or such Guarantor, as the case may be, pursuant
to this SECTION 10.5 shall be paid to them to pay, or to be reimbursed, for
the costs of such repairs or replacements.
() Upon (i) the occurrence and during the continuance of any Event
of Default or (ii) the actual or constructive total loss (in excess of US
$2,500,000 per occurrence) of any Mortgaged Property, Equipment or
Inventory, all insurance payments in respect of such Mortgaged Property,
Equipment or Inventory shall be paid to the Relevant Agent and applied as
specified in SECTION 12.5.
.. TRUE BOOKS. Keep proper books of record and account in which
complete and correct entries will be made of all of its material dealings
and transactions in accordance with GAAP, and include all reserves for
material doubtful accounts and all material taxes, assessments, charges,
levies and claims in interim as well as year-end financial statements.
.. RIGHT OF INSPECTION. () Permit any authorized representative
designated by any Lender or either Agent to visit and inspect any of the
corporate books and financial reports of any Borrower or any Subsidiary, at
the reasonable expense of the Borrowers, and to discuss its affairs,
finances and accounts with its principal executive, financial and treasury
officers and, so long as a representative of such Borrower is present, its
independent certified public or chartered accountants, all at reasonable
times during reasonable business hours, at reasonable intervals and with
reasonable prior notice; and
() Permit any authorized representative designated by the Relevant
Agent to conduct one field audit inspection of the properties and
operations of any Facility Borrower under the US Facilities, at the
reasonable expense of such Borrower, once per year at any reasonable time
during normal business hours and upon reasonable notice (or more often if
an Event of Default has occurred and is continuing). The Relevant Agent or
its designees may conduct more than one such inspection (other than a field
audit) per year, PROVIDED THAT (so long as no Event of Default has occurred
and is continuing) the expenses of only one such inspection shall be
reimbursed by the applicable Borrower or Borrowers.
.. GOVERNMENTAL LICENSES. Obtain and maintain all licenses,
permits, certificates, certifications and approvals of all applicable
Governmental Authorities as are required for the conduct of its business as
currently conducted, except where the failure to maintain such license,
permit, certificate, certification or approval would not reasonably be
expected to have a Material Adverse Effect.
.. OFFICER'S KNOWLEDGE OF DEFAULT. Upon any chief financial officer
of any Borrower, or ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇ or C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(or any successor to any such Person holding the office previously held by
such Person in any Borrower) (collectively, the "Notice Officers")
obtaining knowledge of any Default or Event of Default hereunder, cause
such officer or an Authorized Representative to promptly notify each Agent
of the nature thereof, the period of existence thereof (to the extent
readily determinable) and what action such Borrower or such Subsidiary
proposes to take with respect thereto.
.. SUITS OR OTHER PROCEEDINGS. Upon any Notice Officer obtaining
knowledge of any claim, litigation or other proceedings being instituted
against any Borrower or any Subsidiary of the type described in SECTION
9.9, or any attachment, levy, execution or other process being instituted
against any assets of any Borrower or any Subsidiary, making a claim or
claims in an aggregate amount greater than US $1,000,000 not otherwise
covered by insurance, promptly deliver to each Agent written notice thereof
stating the nature and status of such claim, litigation, dispute,
proceeding, levy, execution or other process.
.. NOTICE OF DISCHARGE OF HAZARDOUS MATERIAL OR ENVIRONMENTAL
COMPLAINT. Promptly provide to each Agent accurate and complete copies of
any and all notices, complaints, orders, directives, claims, or citations
received by any Borrower or any Subsidiary which would reasonably be
expected to have a Material Adverse Effect relating to any (a) violation or
alleged violation by any Borrower or any Subsidiary of any applicable
Environmental Law; (b) release or threatened release by any Borrower or any
Subsidiary, or by any Person handling, transporting, or disposing of any
Hazardous Material on behalf of any Borrower or Subsidiary, or at any
facility or property owned or leased or operated by, any Borrower or any
Subsidiary, of any Hazardous Material, except where occurring legally; or
(c) liability or alleged liability of any Borrower or any Subsidiary for
the costs of cleaning up, removing, remediating or responding to a release
of Hazardous Materials.
.. ENVIRONMENTAL COMPLIANCE. If any Borrower or any Subsidiary
shall receive any letter, notice, complaint, order, directive, claim or
citation alleging that any Borrower or any Subsidiary has violated any
Environmental Law or is liable for the costs of cleaning up, removing,
remediating or responding to a release of Hazardous Materials, such
Borrower shall, within the time period permitted and to the extent required
by the applicable Environmental Law or the Governmental Authority
responsible for enforcing such Environmental Law, remove or remedy, or
cause the applicable Subsidiary to remove or remedy, such violation or
release or satisfy such liability unless (a) the failure to remove or
remedy such violation or release or to satisfy such liability would not
reasonably be expected to have a Material Adverse Effect, in which case
such Borrower shall orally advise each Agent of any decision not to so
remove or remedy such violation or release or satisfy such liability and
the basis for any such decision, and at each Agent's option and at its
request, such Borrower shall provide written documentation of such
decision, or (b) such violation or liability is being contested in good
faith by appropriate proceedings and appropriate reserves therefor are
being maintained in accordance with GAAP.
.. INDEMNIFICATION. Without limiting the generality of SECTION 14.9,
each Borrower hereby agrees jointly and severally to indemnify and hold
each Indemnified Party harmless from and against any and all claims,
losses, penalties, liabilities, damages and expenses (including assessment
and cleanup costs and reasonable attorneys', consultants' or other expert
fees and disbursements) arising directly or indirectly from, out of or by
reason of (a) the violation of any Environmental Law by any Borrower or any
Subsidiary or with respect to any property owned, operated or leased by any
Borrower or any Subsidiary or (b) the handling, storage, treatment,
emission or disposal of any Hazardous Materials by or on behalf of any
Borrower or any Subsidiary (including on or with respect to property never
owned, leased or operated by any Borrower or any Subsidiary) or on or with
respect to property owned or leased or operated by any Borrower or any
Subsidiary except to the extent such claim, loss, penalty, liability,
damage or expense has resulted from any gross negligence or willful
misconduct of, or the violation of applicable law by, such Indemnified
Party or a Related Indemnified Party. The provisions of this SECTION 10.14
shall survive repayment of the Obligations, occurrence of the Revolving
Credit Termination Date, Term B Loan Termination Date and Term Loan
Termination Date and expiration or termination of this Agreement.
.. FURTHER ASSURANCES. At the Borrowers' cost and expense, upon
request of either Agent, duly execute and deliver or cause to be duly
executed and delivered, to such Agent such further instruments, documents,
certificates, financing and continuation statements, and do and cause to be
done such further acts that may be reasonably necessary or advisable in the
reasonable opinion of such Agent to carry out more effectively the
provisions and purposes of this Agreement and the other Loan Documents.
.. EMPLOYEE BENEFIT PLANS, PENSION PLANS AND CANADIAN EMPLOYEE
PENSION PLAN. () With reasonable promptness, and in any event within
thirty (30) days of the date the Authorized Representative receives notice,
give notice to each Agent of (i) the establishment after the date hereof of
any new Pension Plan, stock option plan, bonus plan, deferred compensation
or profit-sharing plan of the Borrower that would reasonably be likely to
have a Material Adverse Effect (which notice shall include a copy of such
plan at the request of either Agent), (ii) the commencement of
contributions to any Employee Benefit Plan or Pension Plan to which any
Borrower or any of its ERISA Affiliates was not previously contributing and
which is reasonably likely to have a Material Adverse Effect, and
(iii) each funding waiver request filed with respect to any Pension Plan
and all communications received or sent by any Borrower or any ERISA
Affiliate with respect if such request is reasonably likely to have a
Material Adverse Effect;
() Promptly and in any event within thirty (30) days of an
Authorized Representative becoming aware of the occurrence or forthcoming
occurrence of any (i) Termination Event or (ii) nonexempt "prohibited
transaction," as such term is defined in Section 406 of ERISA or Section
4975 of the Code, in connection with any Employee Benefit Plan or Pension
Plan or any trust created thereunder, deliver to each Agent a notice
specifying the nature thereof, what action any Borrower or, with respect to
clause (i), any ERISA Affiliate has taken, is taking or proposes to take
with respect thereto and, when known, any action taken or threatened by the
Internal Revenue Service, the Department of Labor or the PBGC with respect
thereto;
() With reasonable promptness but in any event within fifteen (15)
Business Days, deliver to each Agent copies of (a) any unfavorable
determination letter from the Internal Revenue Service regarding the
qualification of an Employee Benefit Plan or Pension Plan of any Borrower
or Guarantor that is intended to be qualified under Section 401(a) of the
Code, except where failure to deliver such copies would not reasonably be
likely to have a Material Adverse Effect, (b) each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) filed by each Borrower
or any ERISA Affiliate with the Internal Revenue Service with respect to
each Pension Plan whose unfunded current liability as defined in Section
412(l)(8)(A) of the Code, is in an amount that is reasonably expected to
have a Material Adverse Effect and (c) all notices received by each
Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor
concerning the imposition or amount of withdrawal liability pursuant to
Section 4202 of ERISA, if the amount of such withdrawal liability is in an
amount that is reasonably expected to have a Material Adverse Effect;
() With reasonable promptness, and in any event within thirty (30) days
of the date the Authorized Representative receives notice, give notice to
each Agent of (i) the establishment of any new Canadian Employee Pension
Plan (which notice shall include a copy of such plan at the request of
either Agent), or (ii) the commencement of contributions to any Canadian
Employee Pension Plan to which Consoltex or Consoltex Group was not
previously contributing, PROVIDED in each case, same would be reasonably
likely to have a Material Adverse Effect;
() Promptly and in any event within thirty (30) days of the
Authorized Representative's becoming aware of the occurrence or forthcoming
occurrence of any Canadian Termination Event which would be reasonably
likely to have a Material Adverse Effect; and
() With reasonable promptness but in any event within fifteen (15)
Business Days, deliver to each Agent copies of any unfavorable
determination letter from Governmental Authority regarding the registration
of a Canadian Employee Pension Plan of Consoltex or Consoltex Group that is
intended to be registered under Canadian Benefit Law, except where such
failure to deliver such copies would not reasonably be likely to have a
Material Adverse Effect.
.. CONTINUED OPERATIONS. Continue at all times to conduct its
business, and engage principally, in all material respects (when considered
with its Subsidiaries as a whole) in substantially the same line or lines
of business as conducted on the Closing Date, or other lines of business
related thereto.
.. NEW SUBSIDIARIES. As soon as practicable and in any event within
ten (10) Business Days (or in the case of clauses (f) and (g) below, sixty
(60) days) after the acquisition or creation of any Subsidiary which is
permitted hereunder, cause to be delivered to the Agents for the benefit of
the Lenders each of the following:
() (except to the extent such delivery would result in (i) a
constructive dividend to any Borrower under applicable tax law, or
(ii) is prohibited by applicable law) a Facility Guaranty executed by
such Subsidiary substantially similar to that executed and delivered
by the Guarantors as of the Original Closing Date;
() (except to the extent such delivery would result in (i) a
constructive dividend to any Borrower under applicable tax law, or
(ii) is prohibited by applicable law) a Security Agreement of such
Subsidiary substantially similar to that executed and delivered by the
Borrowers as of the Original Closing Date, together with such Uniform
Commercial Code financing statements on Form UCC-1, security
registrations or other similar instruments duly executed by such
Subsidiary as "Debtor" and naming the US Collateral Agent or the
Canadian Collateral Trustee, as applicable, for the benefit of the
Lenders as "Secured Party", in form, substance and number sufficient
in the reasonable opinion of the Agents and their special counsel to
be filed in all Uniform Commercial Code or other filing offices in all
jurisdictions in which filing or registration is necessary or
reasonably advisable to perfect in favor of the US Collateral Agent or
the Canadian Collateral Trustee, as applicable, for the benefit of the
Lenders the Lien on all property intended to be perfected Collateral
under such Security Agreement to the extent such Lien may be perfected
by such Uniform Commercial Code or other filing or registration;
() (except to the extent such delivery would result in (i) a
constructive dividend to any Borrower under applicable tax law, or
(ii) is prohibited by applicable law) if such Subsidiary is a
corporation or is a partnership that has issued certificates
evidencing ownership thereof, the Pledged Stock or, if applicable,
certificates of ownership of such partnership interests, together with
duly executed stock powers or powers of assignment in blank affixed
thereto, and (B) if such Pledged Stock or certificates of ownership of
partnership interests shall be owned by a Borrower or a Subsidiary who
has not then executed and delivered to the Agents a Security
Instrument granting a Lien to the US Collateral Agent or the Canadian
Collateral Trustee, as applicable, in such Collateral, a Security
Agreement or a Pledge Agreement (as appropriate) substantially similar
in form and content to that executed and delivered as of the Original
Closing Date, with appropriate revisions as to the identity of the
pledgor and securing the obligations of such pledgor under the Loan
Documents;
() if such Subsidiary is a partnership not described in clause
(c) immediately above, (A) the certificate of the Registrar of such
partnership with respect to the registration of the Lien on
partnership interests, which certificate shall be in form and
substance approved by the Agents, which approval shall not be
unreasonably withheld, and (B) if such partnership interests shall be
owned by a Borrower or a Subsidiary who has not then executed and
delivered to the Agents a Security Instrument granting a Lien to the
US Collateral Agent or the Canadian Collateral Trustee in such
Collateral, a Security Agreement or a Pledge Agreement, as
appropriate, substantially similar in form and content to that
executed and delivered as of the Original Closing Date, with
appropriate revisions as to the identity of the pledgor and securing
the obligations of such pledgor under the Loan Documents;
() supplements to the appropriate schedules attached to the
appropriate Security Instruments listing the additional Collateral,
certified as correct in all material respects by an Authorized
Representative (PROVIDED THAT the failure to deliver such supplement
shall not impair the rights conferred under the Security Instruments
in after acquired Collateral);
() if requested by the Agents, an opinion of counsel to the
Subsidiary addressed to the Agents and the Lenders, in form and
substance reasonably acceptable to the Agents (which opinion may
include assumptions and qualifications similar to those contained in
the opinions of counsel delivered pursuant to SECTION 8.1(II));
() current copies of the charter documents, including partnership
agreements and certificate of limited partnership, if applicable, and
bylaws of such Subsidiary, minutes of duly called and conducted
meetings (or duly effected consent actions) of the Board of Directors,
partners, or appropriate committees thereof (and, if required by such
charter documents, bylaws or by applicable law, of the shareholders)
of such Subsidiary authorizing the actions and the execution and
delivery of documents described in this SECTION 10.17.
.. DEFINITION OF "SATISFACTORY" DOCUMENTATION. When a provision of this
ARTICLE X requires a Borrower or Guarantor to deliver a document in form or
substance "satisfactory" to any Agent or Lender, without further
elaboration, then the Borrower or Guarantor may deliver the document in
substantially the same format as used in the most recent delivery of that
type of document pursuant to the relevant provision, UNLESS the respective
Agent or Lender requests a different format at least twenty (20) days prior
to the required date of delivery.
.. LEASE PURCHASE AGREEMENT. Notwithstanding anything to the
contrary contained in this Agreement or in any Loan Document, LINQ, as
Tenant under the Lease Purchase Agreement by and between itself and
Dorchester County, South Carolina dated as of December __, 1997 (the "Lease
Purchase Agreement"), may execute the Lease Purchase Agreement and any
Related Documents (as defined in the Lease Purchase Agreement), effect the
transactions contemplated by the Lease Purchase Agreement and take any
action permitted to be taken by the Tenant under the Lease Purchase
Agreement, provided that LINQ shall (i) make such requests and take such
action which it is permitted, but not obligated, to do so under the terms
of the Lease Purchase Agreement or the Related Documents as from time to
time directed in writing by the Required Lenders, including without
limitation pursuant to Sections 8.6(D) and 10.2(A)(6) of the Lease Purchase
Agreement, (ii) not amend, revise or supplement the Lease Purchase
Agreement or the Related Documents in any manner materially adverse to the
interests of the Lenders, and (iii) not permit any action to be taken by
Dorchester County, South Carolina under the terms of Section 8.6 of the
Lease Purchase Agreement that LINQ is not otherwise permitted to take under
the terms and conditions of this Agreement or any other Loan Document
without the approval of the Required Lenders.
ARTICLE
NEGATIVE COVENANTS
Until the Obligations have been paid and satisfied in full, no Letters
of Credit remain outstanding and this Agreement has been terminated in
accordance with the terms hereof, unless the Required Lenders shall
otherwise consent in writing, no Borrower will, nor will it permit any
Subsidiary with respect to all Sections in this Article XI other than
SECTIONS 11.1, 11.2, 11.13 AND 11.16 to:
.. FINANCIAL COVENANTS.
() CONSOLIDATED NET WORTH. Permit Consolidated Net Worth to be less
than (i) CAN $100,000,000 as of June 30, 1999, and (ii) as at the last day
of each fiscal quarter of each Fiscal Year of the Borrowers (commencing
with such fiscal quarter ending on September 30, 1999), the sum of (A) the
amount of Consolidated Net Worth required to be maintained as at the end of
the immediately preceding fiscal quarter, plus (B) 60% of Consolidated Net
Income for the fiscal quarter ending on such day (with no deduction for net
losses during such fiscal quarter), plus (C) one hundred percent (100%) of
the aggregate amount of all increases (net of transactional expenses) in
the stated capital and additional paid-in capital accounts of the Borrowers
resulting from the issuance of equity securities or other capital
investments during such fiscal quarter, minus (D) one hundred percent
(100%) of the aggregate amount of all Restricted Payments made to AIP
pursuant to SECTION 11.9(II).
() CONSOLIDATED FIXED CHARGE RATIO. Permit as of the last day of
the respective periods set forth below the Consolidated Fixed Charge Ratio
to be less than that ratio set forth opposite each such period:
Consolidated
Fixed Charge
Ratio Must Not Be
PERIOD LESS THAN
Each Four-Quarter Period ending on
September 30, 1999 or December 31, 1999 1.40 to 1.00
Each Four-Quarter Period ending after
December 31, 1999 1.50 to 1.00
() CONSOLIDATED TOTAL DEBT TO CONSOLIDATED EBITDA. Permit at any
time during the respective periods set forth below the ratio of
Consolidated Total Debt (at such time) to Consolidated EBITDA (as of the
most recently ended Four-Quarter Period at or prior to such time) to be
greater than that ratio set forth opposite each such period:
Consolidated Total
Debt/Consolidated
EBITDA
PERIOD RATIO MUST NOT EXCEED
The Four-Quarter Period ending
on September 30, 1999 4.35 to 1.0
The Four-Quarter Period ending
on December 31, 1999 4.20 to 1.0
The Four-Quarter Period ending
on March 31, 2000 4.00 to 1.0
The Four-Quarter Period ending
on June 30, 2000 3.85 to 1.0
The Four-Quarter Period ending
on September 30, 2000 3.75 to 1.0
() ADJUSTED CONSOLIDATED TOTAL DEBT TO CONSOLIDATED EBITDA. Permit
at any time during the respective periods set forth below the ratio of
Adjusted Consolidated Total Debt (at such time) to Consolidated EBITDA (as
of the most recently ended Four-Quarter Period at or prior to such time) to
be greater than that ratio set forth opposite each such period:
Adjusted Consolidated
Total Debt/
Consolidated EBITDA
PERIOD RATIO MUST NOT EXCEED
The Four-Quarter Period ending
on September 30, 1999 4.80 to 1.0
The Four-Quarter Period ending
on December 31, 1999 4.60 to 1.0
The Four-Quarter Period ending
on March 31, 2000 4.40 to 1.0
The Four-Quarter Period ending
on June 30, 2000 4.25 to 1.0
The Four-Quarter Period ending
on September 30, 2000 4.15 to 1.0
() ADJUSTED CONSOLIDATED TOTAL DEBT TO CONSOLIDATED TOTAL
CAPITALIZATION. Permit at any date set forth below the ratio of Adjusted
Consolidated Total Debt (at such date) to Consolidated Total Capitalization
(at such date) to be greater than that ratio set forth opposite each such
period:
Adjusted
Consolidated Total
Debt/Consolidated
Total Capitalization
PERIOD RATIO MUST NOT EXCEED
The last day of the Four-Quarter Period
ending on December 31, 1999 .765 to 1.00
The last day of the Four-Quarter Period
ending on March 31, 2000 .760 to 1.00
The last day of the Four-Quarter Period
ending on June 30, 2000 .755 to 1.00
The last day of the Four-Quarter Period
ending on September 30, 2000 .750 to 1.00
() All determinations made of the financial covenants in subsections
(a) through (e) above shall be done giving pro forma effect to the Marino
Transaction as of June 30, 1999 and the Atlas Acquisition as of September
30, 1999.
.. ACQUISITIONS. Enter into any agreement, contract, binding
commitment or other binding arrangement providing for any Acquisition, or
take any action to solicit the tender of securities or proxies in respect
thereof in order to effect any Acquisition, unless:
(i) the Person to be (or whose assets are to be) acquired does
not oppose such Acquisition and the line or lines of business of the
Person to be acquired are substantially the same as one or more lines
of business conducted by any of the Borrowers and the Subsidiaries or
a line or lines of business related thereto,
(ii) no Default or Event of Default shall exist immediately after
giving effect to such Acquisition and the applicable Borrower shall
have furnished to the Agents (A) pro forma historical financial
statements as of the end of the most recently completed Fiscal Year
and most recent interim fiscal quarter of such Borrowers, if
applicable, giving effect to such Acquisition and (B) a certificate
prepared on a historical pro forma basis giving effect to such
Acquisition, which certificate shall demonstrate that no Default or
Event of Default would exist under SECTION 11.1 immediately after
giving effect thereto,
(iii) a Borrower or a Subsidiary is the surviving entity or the
surviving entity shall succeed, by agreement or operation of law, to
all of the businesses and operations of such Borrower or such
Subsidiary and shall immediately assume all of the rights and
obligations of such Borrower or such Subsidiary under this Agreement
and the other Loan Documents, and
(iv) after giving effect to such Acquisition, the aggregate cash paid
by the Borrowers and their Subsidiaries to third-party sellers as
consideration for Acquisitions during any Four-Quarter Period (on a
non-cumulative basis, with the effect that amounts not incurred in any
Four-Quarter Period may not be carried forward to a subsequent period)
shall not exceed US $1,000,000;
PROVIDED, HOWEVER, that notwithstanding the foregoing, a Borrower or a
Subsidiary may acquire the assets of Atlas (the "Atlas Acquisition") so
long as (A) the conditions set forth in clauses (i), (ii) and (iii) above
are satisfied and the Atlas Acquisition is completed not later than
November 30, 1999 and (B) the Cost of Acquisition for the Atlas Acquisition
does not exceed the sum of (I) transaction costs (excluding bank financing
fees) not to exceed US $1,000,000 in the aggregate, (II) an amount not to
exceed US $1,000,000 for any net working capital adjustment, and (III) all
Costs of Acquisition, excluding those in (I) and (II), not to exceed US
$14,000,000.
.. CAPITAL EXPENDITURES. Make Capital Expenditures, excluding all
amounts of cash paid as consideration for Acquisitions, which exceed in the
aggregate: (a) during the Fiscal Year ended December 31, 1999, CAN
$23,500,000 (or the US Dollar equivalent thereof), (b) during the Fiscal
Year ended December 31, 2000, CAN $18,000,000 (or the US Dollar equivalent
thereof) and (c) during each Fiscal Year subsequent to Fiscal Year 2000,
the sum of (i) the amount of Capital Expenditures permitted during the
preceding Fiscal Year (the "Prior Fiscal Year") (but excluding any amounts
carried over to such Prior Fiscal Year from the Fiscal Year preceding the
Prior Fiscal Year pursuant to the proviso at the end of this paragraph)
plus (ii) CAN $1,000,000 (or the US Dollar equivalent thereof); PROVIDED
THAT 50% of the amount of Capital Expenditures permitted but not incurred
during any Fiscal Year may be carried over to the next Fiscal Year.
.. LIENS. Incur, create or permit to exist any Lien of any nature
whatsoever with respect to any property or assets now owned or hereafter
acquired by any Borrower or any Subsidiary, other than
() Liens created under the Security Instruments in favor of the
Agents, the US Collateral Agent, the Canadian Collateral Trustee and
the Lenders;
() Liens imposed by law for taxes, assessments or charges of any
Governmental Authority for amounts not more than sixty (60) days past
due (and as to which no enforcement action has been taken by any
Governmental Authority) or which are being contested in good faith by
appropriate proceedings, and with respect to which adequate reserves
or other appropriate provisions are being maintained in accordance
with GAAP;
() statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen, workers and other Liens imposed
by law or created in the ordinary course of business and in existence
less than ninety (90) days from the date of creation thereof for
amounts not yet due or which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
GAAP;
() Liens incurred or deposits made in the ordinary course of business
consisting of surety bonds and appeal bonds, or in connection with
workers' compensation, unemployment insurance, social security
benefits and other similar types of employment obligations required by
law, or to secure the performance of tenders, bids, leases, contracts
(other than for the repayment of Indebtedness for Money Borrowed and
guarantees of payment of Indebtedness for Money Borrowed), statutory
obligations and other similar obligations or arising as a result of
progress payments under government contracts;
() easements, servitudes (including reciprocal easement
agreements and utility agreements), rights-of-way, covenants,
consents, reservations, encroachments, variations and zoning and other
restrictions, charges or encumbrances (whether or not recorded), which
do not interfere materially with the ordinary conduct of the business
of any Borrower or any Guarantor and which do not materially detract
from the value of the property to which they attach or materially
impair the use thereof by any Borrower or any Guarantor; and
() purchase money Liens to secure Indebtedness permitted under
SECTION 11.5(C) and incurred to purchase fixed assets or to finance
such purchase price and to construct or improve fixed assets related
to such purchased fixed assets, or to finance the cost of such
construction or improvement, PROVIDED such Indebtedness represents not
less than ninety percent (90%), of the purchase price thereof as of
the date of purchase thereof and no property other than the assets so
purchased secures such Indebtedness;
() (i) Liens on assets of the Borrowers and their Subsidiaries
as listed in SCHEDULE 11.4(G), and (ii) Liens granted on or after
December 12, 1997 to factors of Accounts Receivable in an aggregate
amount at any time not in excess of US $25,000,000 which arise from
sales to customers outside the United States and Canada that are owing
to any of the Borrowers or any of their Subsidiaries;
() Liens arising out of judgments, attachments, injunctions,
executions or awards that do not constitute Events of Default under
SECTION 12.1(I);
() Liens in favor of customs and revenue authorities arising as a
matter of law to secure the payment of customs duties resulting from
the importation of goods and in each case attaching only to such
goods;
() any interest or title of a lessor or sublessor and any
restriction or encumbrance to which the interest or title of such
lessor or sublessor may be subject that would not be reasonably
expected to have a Material Adverse Effect;
() Liens arising in connection with Capital Leases that are not
prohibited under the terms of this Agreement and in each case
attaching only to the assets which are subject to such Capital Lease;
() Liens on property and assets of a Person existing at the time such
Person is merged into or consolidated with any Borrower or any
Subsidiary or becomes a Subsidiary in accordance with the terms of
this Agreement, PROVIDED that any such Liens were not created in
contemplation of such merger, consolidation or acquisition, as the
case may be, and do not extend to or cover any property or assets
other than the property and assets of the Person being merged into or
consolidated with such Borrower or such Subsidiary or being acquired
by such Borrower or such Subsidiary, as the case may be, and PROVIDED
FURTHER that any Indebtedness secured by such Liens shall not
otherwise be prohibited under the terms of this Agreement;
() Liens securing Indebtedness owed by any Subsidiary to any
Borrower or Guarantor, in each case to the extent such Indebtedness is
not otherwise prohibited under the terms of this Agreement;
() (i) deposits to secure the performance of leases of property
(whether real, personal or mixed) of the Borrowers and their
Subsidiaries (excluding Capitalized Leases) in the ordinary course of
business and (ii) Liens arising from precautionary Uniform Commercial
Code financing statement filings (or other similar filings) regarding
operating leases;
() Liens arising solely from conditional sale, title retention,
consignment or other similar arrangements for the sale of goods
entered into by any Borrower or any Subsidiary in the ordinary course
of business;
() Liens in favor of issuers of documentary and commercial
letters of credit not otherwise prohibited under the terms of this
Agreement on (and limited to) the documents and goods covered thereby;
() Liens not otherwise permitted to be incurred under this
SECTION 11.4 which secure obligations of the Borrowers and their any
Subsidiaries, other than Indebtedness for Money Borrowed, outstanding
in an aggregate principal amount not to exceed US $500,000 at any time
outstanding, PROVIDED that any Indebtedness secured by such Liens
shall not otherwise be prohibited under the terms of this Agreement;
() the reservations, limitations, provisos and conditions, if
any, expressed in any original grants from the Crown, statutory
exception to title and reservation of mineral rights;
() title exceptions referred to in SECTION 8.1(XVIII) and title
defects or irregularities in title which are of a minor nature in the
aggregate and will not materially impair the use of the property for
the purposes for which it is held by any Borrower or any of its
Subsidiaries;
() Liens securing Indebtedness incurred solely to finance the
purchase of looms in the ordinary course of business so long as such
Indebtedness is not otherwise prohibited under the terms of this
Agreement, and PROVIDED that such Liens encumber only the looms so
purchased;
() Liens in favor of a public utility or any municipality or
governmental or other public authority when required by such utility
or other authority in connection with the operations of any Borrower
or any of its Subsidiaries in the ordinary course of its business; and
() extensions, renewals and replacements of any of the foregoing
so long as such Liens continue only to apply to the property
previously subject thereto.
.. INDEBTEDNESS. Incur, create, assume or permit to exist any
Indebtedness, howsoever evidenced, except:
() Indebtedness existing as of the Original Closing Date and as
set forth in SCHEDULE 11.5 as of the Original Closing Date; PROVIDED,
none of the instruments and agreements evidencing or governing such
Indebtedness shall be amended, modified or supplemented after the
Original Closing Date to change adversely to any Borrower or any
Subsidiary in any material respect any terms of subordination, the
aggregate principal amount thereof or the interest rate payable
thereon or rights of conversion, put, exchange or other rights from
such terms and rights as in effect on the Original Closing Date and
any amendment or modification of, or supplement to, the Subordinated
Indenture or any Subordinated Note is subject to compliance with
SECTION 11.16(B);
() Indebtedness owing to any Agent or any Lender in connection
with this Agreement, any Note or any other Loan Document;
() purchase money Indebtedness described in SECTION 11.4(F);
() Indebtedness (i) consisting of Capital Leases and (ii) in the
case of any such Capital Leases to which any Subsidiary of any
Borrower is a party, guarantees by such Borrower or any of its
Subsidiaries of the obligations of such Subsidiary under such leases;
() Indebtedness arising from Rate Hedging Obligations permitted
under SECTION 11.14;
() (i) Indebtedness incurred by any Borrower or Guarantor (other
than Consoltex Mexico, Rafytek or Rafytica) and owing to any other
Borrower or Guarantor (other than Consoltex Mexico, Rafytek or
Rafytica) and (ii) Indebtedness incurred by Consoltex Mexico, Rafytek
and Rafytica and (A) owing to any Borrower or Guarantor (other than
Consoltex Mexico, Rafytek or Rafytica) which, when added to the amount
of assets transferred thereto pursuant to SECTION 11.6(J) does not
exceed in the aggregate US $1,000,000 in any Fiscal Year or (B) owing
to any of Consoltex Mexico, Rafytek or Rafytica;
() Indebtedness existing at the time that any property or asset
is acquired from a third party by any Borrower or any Subsidiary which
Indebtedness was incurred for the purpose of financing the
acquisition, or the construction or improvement, of such property or
asset by such third party and which Indebtedness is secured solely by
such property or asset, PROVIDED that any such Indebtedness was not
incurred in contemplation of such acquisition;
() Indebtedness in existence at the time any Person is merged into or
consolidated with any Subsidiary or becomes a Subsidiary in accordance
with the terms of this Agreement in an aggregate principal amount not
to exceed US $250,000 at any time outstanding, PROVIDED that any such
Indebtedness was not incurred in contemplation of such merger,
consolidation or acquisition, as the case may be;
() Indebtedness under reimbursement obligations in respect of
letters of credit and other similar support obligations issued to
guarantee or support the payment of performance bonds, workers'
compensation claims, insurance claims and contested appeals and
compliance with regulatory obligations incurred in the ordinary course
of business;
() Contingent Obligations in respect of indemnities and purchase
price adjustments incurred in connection with the sale, lease or other
disposition of assets; PROVIDED that the sale, lease or other
disposition of such assets are otherwise permitted under this
Agreement;
() Guarantees by and performance bonds of any Borrower or any
Subsidiary with respect to obligations of its Subsidiaries incurred in
the ordinary course of business and not otherwise prohibited under
this Agreement;
() Additional unsecured Indebtedness not otherwise covered by
clauses (a) through (k) above, PROVIDED that the aggregate outstanding
principal amount of all such other Indebtedness incurred during any
Fiscal Year shall in no event exceed US $1,000,000 at any time;
() Indebtedness incurred solely to finance the purchase of looms
in the ordinary course of business;
() Indebtedness extending the maturity of, or refunding,
replacing or refinancing, in whole or in part, any Indebtedness
incurred under any of the foregoing provisions of this SECTION 11.5;
PROVIDED, HOWEVER, that, except in the case of clause (a) above, the
terms of and the principal amount of any such extension, refunding,
replacing or refinancing Indebtedness, considered as a whole, are no
more restrictive in any material respect than the terms of, and are no
greater than the outstanding principal amount of, the Indebtedness so
extended, refunded, replaced or refinanced; PROVIDED FURTHER, HOWEVER,
that any such refunding, replacing or refinancing of Indebtedness
which is Subordinated Debt shall be accomplished using other
Indebtedness subordinate to the Obligations hereunder, the terms of
which shall be no less restrictive than the terms of this Agreement
and the terms of subordination of which shall be no less favorable to
the Lenders than the Subordinated Debt being refinanced;
() Indebtedness assumed or created in connection with the Royalton
Acquisition described in SECTION 11.2, as follows: (i) Indebtedness in
an aggregate principal amount not to exceed US $2,000,000 incurred by
Consoltex USA in connection with the guarantee of a portion of the
purchase price in the Royalton Acquisition, and (ii) Indebtedness in
an aggregate principal amount not to exceed US $1,250,000 in existence
at the time of and assumed by a Borrower or a Subsidiary in connection
with the consummation of the Royalton Acquisition, provided that such
Indebtedness described in this clause (ii) was not incurred in
contemplation of such Royalton Acquisition; and
() Indebtedness owing to factors of Accounts Receivable from time
to time in principal amount at any time outstanding not to exceed (i)
US $7,000,000 in the aggregate owing to all factors by all Borrowers
in connection with their sales of inventory produced in and
distributed from Mexico to customers in the United States and (ii) in
all other events, CAN $5,000,000 owing in the aggregate to all factors
by all Borrowers and in each of (i) and (ii) without duplication the
guaranty by a Borrower of payment of such Indebtedness incurred by
another Borrower or Subsidiary thereof, the payment of which is
secured by Liens permitted pursuant to SECTION 11.4(G).
.. TRANSFER OF ASSETS. Sell, lease, transfer or otherwise dispose
of any assets of any Borrower or any Subsidiary other than
() dispositions of Inventory in the ordinary course of business;
() dispositions of assets (other than capital stock) which, in
the aggregate during any Fiscal Year, have a fair market value or book
value (whichever is greater), that is less than or equal to five
percent (5%) of the Consolidated Tangible Assets determined as of the
last day of the preceding Fiscal Year, PROVIDED THAT the proceeds of
any dispositions permitted by this clause (b) shall, within four (4)
months after such disposition, be either (i) reinvested by the
Borrowers and the Subsidiaries in substantially the same lines of
business as the businesses of the Borrowers and their Subsidiaries at
the time of such disposition or lines of business related thereto or
(ii) to the extent such proceeds are in cash, used to (y) prepay an
equal amount of outstanding principal and accrued interest on all of
the Canadian Term Loan, the Term B Loan and the US Term Loan; or (z)
if there are no Outstandings under the Term Loans or the Term B Loan,
used to prepay an equal amount of outstanding principal and accrued
interest on both the Canadian Revolving Credit Loans and the US
Revolving Credit Loans, if any, or, if the ratio of Consolidated Total
Debt as of the last day of the most recently ended Four-Quarter Period
to Consolidated EBITDA during such Four-Quarter Period is less than
3.0 to 1.0, to redeem the Subordinated Debt;
() (i) property and assets disposed of in the ordinary course of
business that are not and are not intended to be Collateral to which
is attached a perfected Lien pursuant to the Security Instruments, and
(ii) property and assets of Consoltex Mexico, Rafytek and Rafytica
which, if owned by a Borrower other than Consoltex Mexico, would be
permitted to be disposed of under subclause (c)(i) above;
() investments and reinvestments in Eligible Securities;
() sales and other dispositions of shares of stock of Consoltex
Group, or warrants, rights or options to acquire such shares, so long
as such sale or other disposition would not result in a Change of
Control;
() sales, transfers or other dispositions (i) among any Borrower or
Guarantor and any other Borrower or Guarantor (in each case other than
Consoltex Mexico, Rafytek and Rafytica), (ii) from any of Consoltex
Mexico, Rafytek and Rafytica to any Borrower or Guarantor or among
Consoltex Mexico, Rafytek and Rafytica; and (iii) among one or more
Subsidiaries that are not Guarantors;
() the termination of any lease of real or personal property to
which any Borrower or any Subsidiary is subject, whether as lessee or
lessor;
() [intentionally deleted].
() in transactions permitted by SECTIONS 10.3, 11.2, 11.3, 11.4,
11.7, 11.8 OR 11.9;
() transfers of assets (other than capital stock) to any one or
more of Consoltex Mexico, Rafytek and Rafytica by any one or more of
the other Borrowers and Guarantors (other than Consoltex Mexico,
Rafytek or Rafytica) which when added to loans, advances and all other
financial assistance provided by any Borrower or any Guarantor thereto
as described in SECTIONS 11.5(G) AND 11.7(A), do not exceed in the
aggregate US $1,000,000 in any Fiscal Year;
() sales (in the ordinary course of business) of Accounts
Receivable to factors ;
() dispositions of obsolete, worn-out or surplus property no
longer necessary to the business of such Borrower or such Subsidiary;
and
() so long as no Event of Default shall have occurred and be
continuing, the grant of any option or other right to purchase any
property or assets in a transaction that would otherwise be expressly
permitted under this SECTION 11.6.
.. INVESTMENTS. Purchase, own, invest in or otherwise acquire,
directly or indirectly, any stock or other securities, or make or permit to
exist any interest whatsoever in any other Person, or make or permit to
exist any loans, advances or financial assistance to any Person, except
that any Borrower or any Subsidiary may maintain investments or invest in:
() any Subsidiary existing on the Closing Date or otherwise
permitted to be acquired or created hereunder which is, or in
accordance with SECTION 10.17 will be, a Guarantor; PROVIDED, that
such loans, advances or financial assistance by all Borrowers and
Guarantors (other than Consoltex Mexico, Rafytek and Rafytica) in any
Fiscal Year to Consoltex Mexico, Rafytica and Rafytek when added to
all asset dispositions described in SECTION 11.6(J) occurring during
such Fiscal Year, shall not exceed US $1,000,000;
() securities of any Person acquired in an Acquisition not
otherwise prohibited under the Loan Documents;
() Eligible Securities;
() investments existing as of the Original Closing Date and as set
forth in SCHEDULE 11.7, and rollovers with and reinvestments of the
proceeds thereof in the same investments or in Eligible Securities;
() Accounts Receivable arising and trade credit granted in the
ordinary course of business;
() Investments consisting of Rate Hedging Obligations incurred in
accordance with SECTION 11.14;
() Investments consisting of intercompany Indebtedness otherwise
permitted under SECTION 11.5;
() Investments in account debtors received in connection with the
bankruptcy or reorganization, or in settlement of delinquent
obligations of customers, in the ordinary course of business and in
accordance with applicable collection and credit policies established
by such Borrower or such Subsidiary, as the case may be;
() the acceptance of promissory notes, contingent payment
obligations and equity interests that are received as payment, in
whole or in part, of the purchase price of any property or assets
sold, leased, transferred or otherwise disposed of in accordance with
SECTION 11.6;
() loans and advances to employees of any Borrower or any
Subsidiary to satisfy or reimburse travel, relocation and other
similar business related expenses of such employees in the ordinary
course of business or to purchase shares of common stock of Consoltex
Group under a stock purchase plan available to employees as
compensation thereof; and
() Investments not constituting Acquisitions and not otherwise
permitted under this SECTION 11.7 in an aggregate amount not to exceed
US $500,000 at any time.
.. MERGER OR CONSOLIDATION. (a) Consolidate with or merge into any
other Person, or (b) permit any other Person to merge into it, (c)
liquidate, wind-up or dissolve or (d) sell, transfer or lease or otherwise
dispose of all or a substantial part of its assets; PROVIDED, HOWEVER, (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 Fully Secured Guarantor (as
hereinafter defined), (ii) any Subsidiary of any Borrower that is not a
Guarantor may merge or transfer all or substantially all of its assets or
consolidate with any other Subsidiary that is not a Guarantor and (iii) any
other Person may merge into or consolidate with any Borrower or any
Subsidiary and any Subsidiary may merge into or consolidate with any other
Person in order to consummate an Acquisition permitted under SECTION 11.2;
PROVIDED, that if such merging or consolidating Subsidiary is a Guarantor,
the Person surviving such Acquisition shall do all things necessary under
SECTION 10.17 to become a Guarantor and to enter into a Security Agreement
(notwithstanding the exceptions allowed under SECTION 10.17 in the event
any such action undertaken by such Person would result in a constructive
dividend or be prohibited by law) having terms applicable to such Person
substantially similar to the terms under the Security Agreement delivered
on the Original Closing Date applicable to the Borrowers and Guarantors
other than Consoltex Mexico, Rafytek and Rafytica (a "Fully Secured
Guarantor") (PROVIDED FURTHER that, in the case of any merger,
consolidation or transfer of assets referred to in clause (i), (ii) or
(iii) of this SECTION 11.8, if the US Collateral Agent, the Canadian
Collateral Agent, or any Agent on behalf of the Lenders has a perfected
Lien on any property so transferred (or owned by any party subject to such
merger or consolidation), such Lien shall remain continuously perfected,
and PROVIDED FURTHER that the Agents' and Lenders' rights under any
Facility Guaranty (other than the Guaranty of the Subsidiary so merging,
consolidating, liquidating, dissolving or transferring such assets) shall
not be adversely affected by such transfer, liquidation, dissolution,
consolidation or merger).
.. RESTRICTED PAYMENTS. Make any Restricted Payment or apply or set
apart any of their assets therefor or agree to do any of the foregoing
other than a redemption by Consoltex Group of one class of its issued and
outstanding capital stock in consideration of the shares of another class
of capital stock not previously issued or outstanding; (I) PROVIDED,
HOWEVER, that (a) IF the ratio of Consolidated Total Debt to Consolidated
EBITDA is less than 3.00 to 1.00 as of the last day of the most recently
ended Four-Quarter Period, THEN Consoltex Group may, with the prior written
consent of the Required Lenders (which consent shall not be unreasonably
withheld or delayed, it being understood that the existence of a Default or
an Event of Default shall be a reasonable basis on which the Required
Lenders may withhold consent), declare or pay dividends or make other
distributions of property to its shareholders or redeem, repurchase,
retire, defease or otherwise acquire for value shares of its issued and
outstanding capital stock; (b) any Subsidiary of a Borrower may declare and
pay dividends to such Borrower or any Subsidiary of such Borrower that is a
Guarantor; (c) any Borrower or any Subsidiary may declare dividends or make
distributions in each case payable solely in shares of its capital stock
PROVIDED that a Change in Control shall not result from such dividend or
distribution, and PROVIDED FURTHER that if such shares are transferred to a
Borrower, Guarantor or Subsidiary in connection with such a dividend or
distribution, the shares shall be pledged under the applicable Pledge
Agreement and delivered to the US Collateral Agent or the Canadian
Collateral Trustee, as applicable; and (d) the issuers of the Subordinated
Debt may (i) pay interest thereon in accordance with the terms thereof as
in effect on the Closing Date in both the Subordinated Indenture and in the
Subordinated Notes and (ii) not redeem, retire, defease or otherwise
acquire for value any principal amount of the Subordinated Debt for any
reason whether as an optional or mandatory redemption except as otherwise
permitted by SECTIONS 11.6(B)(II)(Z) and financed, if not by the proceeds
of asset sales, either from cash flow derived from continuing business
operations or from Advances; and (II) PROVIDED FURTHER, HOWEVER, that, IF
there shall not then exist a Default or Event of Default immediately prior
to or after giving effect to the foregoing, THEN Consoltex Group may make
any one or more Restricted Payments to AIP in an aggregate amount not to
exceed the AIP Equity Contribution less the stated amount of any
outstanding LGHBV Letter of Credit.
.. TRANSACTIONS WITH AFFILIATES. Other than transactions permitted
under SECTIONS 11.5, 11.6, 11.7, 11.8 AND 11.9, enter into any transaction
after the Closing Date, including, without limitation, the purchase, sale,
lease or exchange of property, real or personal, or the rendering of any
service, with any Affiliate of any Borrower, except upon terms no less
favorable to such Borrower (or such Subsidiary) than would be obtained in a
comparable arm's-length transaction with a Person not an Affiliate;
PROVIDED, HOWEVER, that the following actions and transactions shall not be
restricted hereunder:
() any employment arrangement entered into by any Borrower or any
Subsidiary in the ordinary course of business and consistent with past
practice;
() the payment of reasonable compensation (including, without
limitation, compensation in the form of equity to the extent not
otherwise prohibited under the Loan Documents) to directors and
officers of the Borrowers and the Subsidiaries;
() transactions between or among the Borrowers and their
respective Subsidiaries or between or among Subsidiaries, in each case
to the extent otherwise not prohibited under this Agreement; and
() the entering into of arrangements to pay, and the payment of,
management and other similar fees among the Borrowers and the
Subsidiaries.
.. COMPLIANCE WITH ERISA AND CANADIAN BENEFIT LAW.
() permit the occurrence of any Termination Event which would
result in a material liability on the part of any Borrower or any
ERISA Affiliate to the PBGC which would be reasonably likely to have a
Material Adverse Effect; or
() fail to make any contribution or payment to any Multiemployer
Plan which any Borrower or any ERISA Affiliate is required to make
under any agreement relating to such Multiemployer Plan, or any law
pertaining thereto, except where such non-compliance would not
reasonably be likely to have a Material Adverse Effect; or
() engage, in any prohibited transaction under Section 406 of
ERISA or Sections 4975 of the Code for which a civil penalty pursuant
to Section 502(i) of ERISA or a tax pursuant to Section 4975 of the
Code may be imposed, except where such non-compliance would not
reasonably be likely to have a Material Adverse Effect; or
() permit the amendment of any Employee Benefit Plan which
amendment would result in liability of any Borrower or increase the
obligation of any Borrower to a Multiemployer Plan, except where such
amendment would not reasonably be likely to have a Material Adverse
Effect; or
() fail, or permit any ERISA Affiliate to fail, to establish,
maintain and operate each Employee Benefit Plan or Pension Plan in
compliance in all material respects with the provisions of ERISA, the
Code and all other applicable laws and the regulations thereof, except
where such non-compliance would not be reasonably likely to result in
a Material Adverse Effect; or
() permit the occurrence of any Canadian Termination Event which
would result in a material liability on the part of Consoltex or
Consoltex Group which would be reasonably likely to have a Material
Adverse Effect; or
() engage in a transaction that would render a Canadian Employee
Pension Plan liable to tax under Part XI of the INCOME TAX ACT or to
have its registration revoked by any Governmental Authority, except
where, in each case, same would not be reasonably likely to have a
Material Adverse Effect; or
() fail, or permit to fail, to establish, maintain and operate
each Canadian Employee Pension Plan in compliance in all material
respects with the provisions of Canadian Benefit Law, except where
such non-compliance would not be reasonably likely to result in a
Material Adverse Effect.
.. FISCAL YEAR. Change its Fiscal Year.
.. CHANGE IN CONTROL.
() Cause, suffer or permit any Change of Control; or
() Cause, suffer or permit any Borrower or Guarantor (other than
Consoltex Group) not to be wholly owned by another Borrower or
Guarantor, except in accordance with SECTION 11.2 OR 11.8 and except
for the minimum number of shares that must be held by third parties to
comply with applicable law.
.. RATE HEDGING OBLIGATIONS. Incur any Rate Hedging Obligations or
enter into any agreements, arrangements or instruments relating to Rate
Hedging Obligations, except (a) in the ordinary course of business and with
the consent of both Agents, such consent not to be unreasonably withheld or
delayed and notice of each such consent to be delivered by the Agents to
each of the Lenders, and (b) pursuant to Hedge Agreements in an aggregate
notional amount not to exceed at any time US $100,000,000 or as otherwise
agreed by the Borrowers and the Agents.
.. NEGATIVE PLEDGE CLAUSES. Enter into any agreement (other than in
connection with (a) any Indebtedness expressly permitted to be incurred
under SECTION 11.5(A), (C), (D), (E), (G) OR (H) (including any such
Indebtedness permitted to be incurred under SECTION 11.5(N) as a
refinancing thereof), or (b) any Liens expressly permitted to be incurred
under SECTION 11.4(O), or (c) any Indebtedness outstanding on the date such
Subsidiary first becomes a Subsidiary (or any Subsidiary of any Borrower))
with any Person other than the Agents and the Lenders pursuant to this
Agreement or any other Loan Documents which prohibits or limits the ability
of any Borrower or any Subsidiary to create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now
owned or hereafter acquired; PROVIDED, however, any such prohibition or
limitation contained in any document or agreement evidencing or governing
(i) Indebtedness permitted to be incurred under SECTION 11.5(C) AND (G)
shall apply only to the asset purchased, constructed or improved with the
proceeds of such Indebtedness, (ii) Indebtedness permitted to be incurred
under SECTION 11.5(D) shall apply only to the asset financed by such
Capital Lease, (iii) Liens expressly permitted to be incurred under SECTION
11.4(O) shall apply only to the goods subject to such conditional sale,
title retention, consignment or other similar arrangement and (iv)
Indebtedness permitted to be incurred under SECTION 11.5(A) shall not
prohibit the granting of the Liens on the Collateral pursuant to the
Security Instruments.
.. SUBORDINATED DEBT.
() Fail at any time to maintain for any reason the Obligations as
"Senior Debt" and, so long as aggregate Total Commitments under
remaining Facilities exceeds CAN $25,000,000, "Designated Senior Debt"
under the Subordinated Indenture and the Subordinated Notes; and
() Amend, revise or supplement, in any manner adverse to the
interests of the Lenders, the subordination provisions or payment or
redemption terms of the Subordinated Debt, or in any manner material
and adverse to the Lenders, the other covenants of, or events of
default under, the Subordinated Indenture or the Subordinated Notes.
ARTICLE
EVENTS OF DEFAULT AND ACCELERATION
.. EVENTS OF DEFAULT. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever
(whether such occurrence shall be voluntary or involuntary and howsoever
effected) that is to say:
() if default shall be made in the due and punctual payment of
the principal of any Loan, any fees on Bankers' Acceptances or any
Reimbursement Obligation when and as the same shall be due and payable
whether pursuant to any provision of ARTICLES II, III OR IV, at
maturity, by acceleration or otherwise; or
() if default shall be made in the due and punctual payment of
(i) any interest on any Loan when and as the same shall be due and
payable or (ii) any fees (other than fees on Bankers' Acceptances)
within two (2) Business Days after the same shall be due and payable
in accordance with the terms hereof or (iii) any other amounts payable
under any other Loan Document to any of the Lenders or either Agent or
the US Collateral Agent or Canadian Collateral Trustee within five (5)
Business Days after notice from any Lender or either Agent requesting
payment thereof; or
() if default shall be made in the performance or observance of
any covenant set forth in SECTIONS 10.9 OR 10.10, 10.17 or ARTICLE XI
(other than SECTION 11.10); or
() (i) if a default shall be made in the performance or
observance of any covenant, agreement or provision contained in this
Agreement, the Notes or any other Loan Document (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for thirty (30) or more days after (A) receipt of notice of
such default to the Authorized Representative from either Agent or (B)
any Notice Officer having actual knowledge of the occurrence of such
default, or (ii) if any material provision of any Loan Document ceases
to be in full force and effect (other than pursuant to the terms
thereof or by reason of any action by either Agent, the US Collateral
Agent, the Canadian Collateral Trustee or any Lender), or (iii) if
without the written consent of the Lenders, this Agreement or any
other Loan Document shall be disaffirmed or shall terminate or become
void or unenforceable in any material respect for any reason
whatsoever (other than in accordance with its terms or by reason of
any action by any Lender, the US Collateral Agent, the Canadian
Collateral Trustee or either Agent), or (iv) if any Lien on any
material portion of the Collateral intended to have been perfected in
favor of the US Collateral Agent or the Canadian Collateral Trustee
for the benefit of the Lenders shall be terminated, lapse or fail to
be or remain perfected (except as expressly permitted by this
Agreement or any other Loan Document); or
() if a default shall occur and continue beyond the applicable grace
period, if any, (i) in the payment of any principal, interest or
premium on (A) the Subordinated Notes or (B) any other Indebtedness
(other than the Loans and other Obligations and other than
Indebtedness to which recourse is limited to one or more specified
assets and no other assets) of any Borrower, any Guarantor or any
Subsidiary in an amount not less than US $2,000,000 in the aggregate
outstanding, or (ii) in the performance, observance or fulfillment of
any term or covenant contained in the Subordinated Indenture or any
Subordinated Note or any agreement or instrument under or pursuant to
which any such other Indebtedness may have been issued, created,
assumed, guaranteed or secured by any Borrower, any Guarantor or any
Subsidiary, and such default shall permit the holder of any
Subordinated Debt or any such Indebtedness (or any agent or trustee
acting on behalf of one or more holders) to accelerate the maturity
thereof; or
() if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report
or written statement at any time furnished to either Agent or any
Lender by or on behalf of any Borrower or any Guarantor pursuant to or
in connection with any Loan Document shall have been incorrect in any
material respect when given; or
() if any Borrower or Guarantor or any Subsidiary shall be unable
to pay its debts generally as they become due; file a petition to take
advantage of any insolvency statute; make an assignment for the
benefit of its creditors; commence a proceeding for the appointment of
a receiver, trustee, liquidator or conservator of itself or of the
whole or any substantial part of its property or otherwise wind-up or
dissolve (except in connection with, or constituting a part of, a
merger or consolidation transaction not prohibited under SECTION
11.8); file a petition or answer seeking liquidation, reorganization
or arrangement or similar relief under the bankruptcy laws or any
other applicable law or statute of Canada or any province thereof or
of the United States of America or any state thereof; or
() if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of any Borrower or any Guarantor, or any
Subsidiary or of the whole or any substantial part of its properties
(except as not prohibited under SECTION 11.8) and such order, judgment
or decree continues unstayed and in effect for a period of sixty (60)
days, or approve a petition filed against any Borrower, any Guarantor
or any Subsidiary seeking liquidation, dissolution, reorganization or
arrangement or similar relief under the bankruptcy laws or any other
applicable law or statute of Canada or any province thereof or of the
United States of America or any state thereof, which petition is not
dismissed within sixty (60) days; or if, under the provisions of any
other law for the relief or aid of debtors, a court of competent
jurisdiction shall assume custody or control of any Borrower, any
Guarantor or any Subsidiary or of the whole or any substantial part of
its properties, which control is not relinquished within sixty (60)
days; or if there is commenced against any Borrower, any Guarantor or
any Subsidiary any proceeding or petition seeking reorganization,
dissolution, liquidation, arrangement or similar relief under the
bankruptcy laws or any other applicable law or statute of Canada or
any province thereof or of the United States of America or any state
thereof which proceeding or petition remains undismissed and unstayed
for a period of sixty (60) days; or if any Borrower, any Guarantor or
any Subsidiary takes any action to indicate its consent to or approval
of any such proceeding or petition; or
() if (i) any judgment for the payment of money where the amount not
covered by insurance (or the amount as to which the insurer denies
liability) is in excess of US $2,000,000 in the aggregate is rendered
against any Borrower or any Guarantor or any Subsidiary, or (ii) there
is any attachment, injunction or execution against any of the
properties of any Borrower or any Guarantor or any Subsidiary as
satisfaction for any judgment for an amount in excess of US $2,000,000
in the aggregate; and such judgment, attachment, injunction or
execution remains unpaid, unstayed, undischarged, unbonded or
undismissed for a period of sixty (60) days;
then, and in any such event and at any time thereafter, if such Event of
Default or any other Event of Default shall be continuing,
(A) either or both of the following actions may be taken:
(i) the Agents, with the consent of the Required Lenders, may,
and at the direction of the Required Lenders shall, declare by
written notice to the Borrowers that each Revolving Credit
Facility and Canadian Swing Line Facility and Letter of Credit
Facility has been permanently and irrevocably terminated, and
(ii) the Agents, with the consent of the Required Lenders may,
and at the direction of the Required Lenders shall, declare by
notice to the Borrowers any or all of the Obligations to be
immediately due and payable, and the same, including all interest
accrued thereon and all other obligations of the Borrowers to the
Agents and the Lenders, shall forthwith become immediately due
and payable without presentment, demand, protest, notice or other
formality of any kind, all of which are hereby expressly waived,
anything contained herein or in any instrument evidencing the
Obligations to the contrary notwithstanding, and upon such
acceleration, the Agents and each of the Lenders shall have all
of the rights and remedies available under the Loan Documents or
under applicable law; PROVIDED, HOWEVER, that notwithstanding the
above, if there shall occur an Event of Default under clause (g)
or (h) above, then the obligation of the Lenders to make
Revolving Credit Loans and Canadian Swing Line Loans and of the
Issuing Banks to issue Letters of Credit hereunder shall
automatically be permanently and irrevocably terminated and any
and all of the Obligations shall be immediately due and payable
(and the Agents and Lenders shall have all such rights and
remedies) without the necessity of any action by either Agent or
the Required Lenders or notice to either Agent or the Lenders,
and
(B) The Borrowers shall, upon demand of either both Agents
or the Required Lenders through the Agents, at their option,
deposit cash with the Agents in an amount equal to the amount of
any Outstandings under a Letter of Credit Facility or the
aggregate face amount of all outstanding Bankers' Acceptances as
collateral security for the repayment of any future drawings or
payments under such Letters of Credit or Bankers' Acceptances,
and such amounts shall be held by the Agents pursuant to the
terms of the Cash Collateral Agreements.
.. AGENTS TO ACT. In case any one or more Events of Default shall occur
and be continuing, both Agents together may, and at the direction of the
Required Lenders shall, proceed to protect and enforce their rights or
remedies either by suit in equity or by action at law, or both, whether for
the specific performance of any covenant, agreement or other provision
contained herein or in any other Loan Document, or to enforce the payment
of the Obligations or any other legal or equitable right or remedy.
.. CUMULATIVE RIGHTS. No right or remedy herein conferred upon the
Lenders or the Agents is intended to be exclusive of any other rights or
remedies contained herein or in any other Loan Document, and every such
right or remedy shall be cumulative and shall be in addition to every other
such right or remedy contained herein and therein or now or hereafter
existing at law or in equity or by statute, or otherwise.
.. NO WAIVER. No course of dealing between any Borrower and any
Lender or either Agent or any failure or delay on the part of any Lender or
either Agent in exercising any rights or remedies under any Loan Document
or otherwise available to it shall operate as a waiver of any rights or
remedies and no single or partial exercise of any rights or remedies shall
operate as a waiver or preclude the exercise of any other rights or
remedies hereunder or of the same right or remedy on a future occasion.
.. ALLOCATION OF PROCEEDS. If an Acceleration Event shall have
occurred, all payments (including any proceeds of Collateral) received by
either Agent, any Lender, the Canadian Collateral Trustee or the US
Collateral Agent, pursuant to a Security Instrument or otherwise, in
respect of any principal of or interest on the Obligations or any other
amounts payable by any Borrower hereunder, shall be applied by the Agents
in the following order, with no payments to be applied to the amounts set
forth in any subparagraph below unless all amounts set forth in all prior
subparagraphs have been paid in full, including amounts required to be paid
pursuant to SECTION 7.7(A) with respect to any prior application of
payments:
() amounts due to the Lenders pursuant to SECTIONS 3.5, 4.3, 4.4,
5.1(F) AND 14.5;
() amounts due to the Agents pursuant to SECTION 13.11;
() payments
() of interest on Loans and Reimbursement Obligations, to be
applied for the ratable benefit of the Issuing Bank and the
Lenders pursuant to their Applicable Outstanding Percentage, and
() of principal of Loans and Reimbursement Obligations, to
be applied for the ratable benefit of the Lenders pursuant to
their Applicable Outstanding Percentage;
PROVIDED that (i) proceeds of the Collateral belonging to Consoltex Group,
Consoltex and any other Borrowers or Guarantors organized under the
laws of Canada or any province or other political subdivision thereof
shall be applied first to the payment of the interest owed under the
Canadian Facilities, second to the payment of the principal owed under
the Canadian Facilities, third to payment of the principal owed under
the US Facilities and fourth to the payment of interest owed under the
US Facilities and (ii) the proceeds of the Collateral belonging to
Consoltex USA, Consoltex International Inc., Balson-Hercules, LINQ or
any other Borrower or Guarantor organized under the laws of the United
States or any state or other political subdivision thereof shall be
applied first to the payment of the interest owed under the US
Facilities, second to the payment of the principal owed under the US
Facilities, third to the payment of the principal owed under the
Canadian Facilities and fourth to payment of the interest owed under
the Canadian Facilities; PROVIDED FURTHER, that proceeds of Collateral
to be applied to principal owed under any of the Facilities shall be
applied first to the payment of Base Rate Loans and secondly, and
ratably, to Bankers' Acceptances and Eurodollar Rate Loans;
() payments of cash amounts to the Agents in respect of
outstanding Letters of Credit pursuant to SECTION 12.1(B) which
amounts shall be held by the Agents pursuant to the terms of the Cash
Collateral Agreement;
() amounts due to the Lenders pursuant to SECTIONS 4.2(G), 10.15,
14.9 and ARTICLE VII;
() payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
Lenders pursuant to their Applicable Outstanding Percentage;
() amounts due to any of the Lenders in respect of Obligations
consisting of liabilities under any Hedge Agreement with any of the
Lenders on a pro rata basis according to the amounts owed; and
() any surplus remaining after application as provided for
herein, to the Borrowers or otherwise as may be required by applicable
law.
ARTICLE
THE AGENTS
.. APPOINTMENT. Each Canadian Facility Lender hereby irrevocably
designates and appoints NBC as the Canadian Agent for the Canadian Facility
Lenders under this Agreement, and each of the Canadian Facility Lenders
hereby irrevocably authorizes NBC as the Canadian Agent for such Canadian
Facility Lender, to take such action on its behalf under the provisions of
this Agreement and the other Loan Documents and to exercise such powers as
are expressly delegated to the Canadian Agent by the terms of this
Agreement and such other Loan Documents, together with such other powers as
are reasonably incidental thereto. Each US Facility Lender hereby
irrevocably designates and appoints Bank of America as the US Agent for the
US Facility Lenders under this Agreement, and each of the US Facility
Lenders hereby irrevocably authorizes Bank of America as the US Agent for
such US Facility Lender, to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and to exercise
such powers as are expressly delegated to the US Agent by the terms of this
Agreement and such other Loan Documents, together with such other powers as
are reasonably incidental thereto. Each Term B Loan Facility Lender hereby
irrevocably designates and appoints Bank of America as the US Agent for the
Term B Loan Facility Lenders under this Agreement, and each of the Term B
Facility Lenders hereby irrevocably authorizes Bank of America the US Agent
for such Term B Loan Facility Lender, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers as are expressly delegated to the US Agent by the
terms of this Agreement and such other Loan Documents, together with such
other powers as are reasonably incidental thereto. The Agents shall not
have any duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any of the Lenders, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against either Agent.
.. ATTORNEYS-IN-FACT. The Agents may execute any of their duties
under the Loan Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to
such duties.
.. LIMITATION ON LIABILITY. Neither Agent nor any of their officers,
directors, employees, agents or attorneys-in-fact shall be liable to any of
the Lenders for any action lawfully taken or omitted to be taken by it or
them under or in connection with the Loan Documents, except for its or
their own gross negligence or willful misconduct. Neither Agent nor any of
their affiliates shall be responsible in any manner to any of the Lenders
for any recitals, statements, representations or warranties made by any
Borrower, any Guarantor or any officer or representative thereof contained
in any Loan Document, or in any certificate, report, statement or other
document referred to or provided for in or received by either Agent under
or in connection with any Loan Document, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any Loan
Document, or for any failure of any Borrower or any Guarantor to perform
its obligations under any Loan Document, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any
Collateral. The Agents shall not be under any obligation to any of the
Lenders to ascertain or to inquire as to the observance or performance of
any of the terms, covenants or conditions of any Loan Document on the part
of any Borrower or any Guarantor or to inspect the properties, books or
records of any Borrower or their Subsidiaries or any other Guarantor;
PROVIDED, HOWEVER, the Agents shall deliver to each Lender and the
Borrowers the written report of the results of any field audit inspection
conducted as set forth in SECTION 10.7(B).
.. RELIANCE. Each of the Agents shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing, resolution,
notice, consent certificate, affidavit, letter, cablegram, telegram,
telefacsimile or telex message, statement, order or other document or
conversation believed by it in good faith to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation,
counsel to any Borrower), independent accountants and other experts
selected by either Agent. The Agents may deem and treat the payee of any
Note as the owner thereof or, with respect to the Canadian Facilities,
treat the financial institution set forth as the maker of any Loan in the
Canadian Agent's records as the Lender thereof for all purposes unless an
Assignment and Acceptance shall have been filed with and accepted by the
Agents. The Agents shall be fully justified in failing or refusing to take
any action under this Agreement unless it shall first receive advice or
concurrence of the Lenders or the Required Lenders as provided in this
Agreement or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Agents
shall in all cases be fully protected in acting, or in refraining from
acting, under the Loan Documents in accordance with a request of the
Required Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all present and
future holders of the Notes and the Loans.
.. NOTICE OF DEFAULT. The Agents shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless either Agent has received notice from a Lender, an
Authorized Representative or a Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is
a "notice of default", or unless the Agent itself has provided such notice.
In the event that either Agent receives such a notice, such Agent shall
promptly give notice thereof to the other Agent and to the Lenders. The
Agents shall take such action with respect to such Default or Event of
Default as shall be reasonably directed by the Required Lenders; PROVIDED
that, unless and until either Agent shall have received such directions,
the Agents may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such Event of Default as it or
they shall deem advisable in the best interests of the Lenders so long as
such action or inaction is not restricted by the relevant provisions of the
Loan Documents.
.. NO REPRESENTATIONS. Each Lender expressly acknowledges that neither
Agent nor any of their affiliates has made any representations or
warranties to it and that no act by either Agent hereafter taken, including
any review of the affairs of any Borrower, their Subsidiaries or any other
Guarantor, shall be deemed to constitute any representation or warranty by
the Agents to any Lender. Each Lender represents that it has,
independently and without reliance upon the Agents or any other Lender, and
based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the financial condition,
creditworthiness, affairs, status and nature of each Borrower and each
Guarantor and made its own decision to enter into this Agreement. Each
Lender also represents that it will, independently and without reliance
upon the Agents or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking
action under the Loan Documents and to make such investigation as it deems
necessary to inform itself as to the status and affairs, financial or
otherwise, of each Borrower, its Subsidiaries and any other Guarantor.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Agents hereunder, the Agents shall not have
any duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition or business of any
Borrower, any Subsidiaries and any other Guarantor which may come into the
possession of either Agent or any of the Agents' affiliates.
.. INDEMNIFICATION. Each of the Lenders agrees to indemnify the
Agents in their capacity as such (to the extent not reimbursed by any
Borrower or any Guarantor and without limiting any obligations of any
Borrower or any Guarantor to do so), ratably according to the respective
aggregate outstanding principal amount of the Notes or Loans held by them
(or, if no Notes or Loans are outstanding, ratably in accordance with their
respective Applicable Commitment Percentages of the sum of the Total
Commitments as then in effect) from and against any and all liabilities,
obligations, losses (excluding any losses suffered by either Agent as a
result of Borrowers' failure to pay any fee owing to either Agent),
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may at any time
(including without limitation at any time following the payment of the
Notes or Loans) be imposed on, incurred by or asserted against either Agent
in any way relating to or arising out of any Loan Document or any other
document contemplated by or referred to therein or the transactions
contemplated thereby or any action taken or omitted by either Agent under
or in connection with any of the foregoing; PROVIDED that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from either Agent's gross negligence or willful
misconduct. The agreements in this subsection shall survive the payment of
the Obligations and the termination of this Agreement.
.. LENDER. Each Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with any
Borrower and any Guarantor as though it were not an Agent hereunder. With
respect to its Loans made or renewed by it and any Note issued to it, each
Agent shall have the same rights and powers under this Agreement as any
Lender and may exercise the same as though it were not an Agent, and the
terms "Lender" and "Lenders" shall, unless the context otherwise indicates,
include each Agent in its individual capacity.
.. RESIGNATION. If the US Agent or the Canadian Agent, as the case may
be, shall resign as Agent under this Agreement, then the Required Lenders
with respect to the US Facilities and the Term B Loan Facility or with
respect to the Canadian Facilities, as the case may be, may appoint, with
the consent, so long as there shall not have occurred and be continuing an
Event of Default, of the Borrowers, which consent shall not be unreasonably
withheld, a successor Agent for the relevant Lenders, which successor
Canadian Agent shall be elected among Lenders under the Canadian Facilities
and shall be a Schedule I bank under the BANK ACT (Canada) and which US
Agent shall be a commercial bank organized under the laws of the United
States or any state thereof, having a combined surplus and capital of not
less than US $500,000,000, whereupon such successor Agent shall succeed to
the rights, powers and duties of the former Agent and the obligations of
the former Agent shall be terminated and canceled, without any other or
further act or deed on the part of such former Agent or any of the parties
to this Agreement; PROVIDED, HOWEVER, that the former Agent's resignation
shall not become effective until such successor Agent has been appointed
and has succeeded of record to all right, title and interest in any
Collateral held by the Agents; PROVIDED, FURTHER, that if Required Lenders
with respect to the US Facilities and the Term B Loan Facility or with
respect to the Canadian Facilities, as the case may be, and, if applicable,
the Borrowers cannot agree as to a successor Agent within ninety (90) days
after such resignation, the remaining Agent shall appoint a successor Agent
which satisfies the criteria set forth above in this SECTION 13.9 for a
successor Agent and the parties hereto agree to execute whatever documents
are necessary to effect such action under this Agreement or any other
document executed pursuant to this Agreement. After any retiring Agent's
resignation hereunder as Agent, the provisions of this ARTICLE XIII shall
inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
.. SHARING OF PAYMENTS, ETC. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, set-off, counterclaim or
otherwise, obtain payment with respect to Obligations owed to it (other
than pursuant to ARTICLE VII) which results in its receiving more than its
pro rata share of the aggregate payments with respect to all of the
Obligations (other than any payment pursuant to ARTICLE VII), then (a) such
Lender shall be deemed to have simultaneously purchased from the other
Lenders a share in their Obligations so that the amount of the Obligations
held by each of the Lenders shall be pro rata and (b) such other
adjustments shall be made from time to time as shall be equitable to insure
that the Lenders share such payments ratably; PROVIDED, HOWEVER, that for
purposes of this SECTION 13.10 the term "pro rata" shall be determined with
respect to all the Commitments of each Lender and to the Total Commitments
after subtraction in each case of amounts, if any, by which any such Lender
has not funded its share of the outstanding Loans and Obligations. If all
or any portion of any such excess payment is thereafter recovered from the
Lender which received the same, the purchase provided in this SECTION 13.10
shall be rescinded to the extent of such recovery, without interest. The
Borrowers expressly consent to the foregoing arrangements and agree that
each Lender so purchasing a portion of the other Lenders' Obligations may
exercise all rights of payment (including, without limitation, all rights
of set-off, banker's lien or counterclaim) with respect to such portion as
fully as if such Lender were the direct holder of such portion.
.. FEES. The Borrowers agrees to pay to the Agents, for their
individual account, an annual Agents' fee as from time to time agreed to by
the Borrowers and the Agents in writing.
ARTICLE
MISCELLANEOUS
.. ASSIGNMENTS AND PARTICIPATIONS. () At any time after the Closing
Date each Lender may, with the prior written consent of each Relevant Agent
and (so long as no Default with respect to SECTIONS 12.1(B), (G) OR (H) or
no Event of Default has occurred and is continuing) Consoltex Group, which
consents shall not be unreasonably withheld (it being understood and agreed
that an increase (if not de minimis) in the costs to, or amounts required
to be paid by, any Borrower under ARTICLE VII or otherwise under the Loan
Documents as a result of any proposed assignment shall be a reasonable
basis on which Consoltex Group may withhold its consent), and, if demanded
by any Borrower (following such Lender's demand for payment or the
suspension of making or maintaining Eurodollar Rate Loans under any of the
provisions of ARTICLE VII or upon any such Lender becoming a Non-Funding
Lender), upon at least three Business Days' notice to each Agent, will
assign to one or more banks or financial institutions all or a portion of
its rights and obligations under the Loan Documents (including, without
limitation, all or a portion of any Note payable to its order); PROVIDED,
that (i) each such assignment shall be of a constant and not a varying
percentage of all of the assigning Lender's rights and obligations under
any specified Facility (but may vary as between the separate Facilities to
which such Lender is a party), (ii) the assigning Lender shall execute an
Assignment and Acceptance and deliver it to the Relevant Agent and, for
each assignment involving the issuance and transfer of a Note, the relevant
Borrowers hereby agree to execute a replacement Note or replacement Notes
to give effect to the assignment within five (5) Business Days of the
Effective Date of such assignment, (iii) the minimum Commitment which shall
be assigned is US $10,000,000, PROVIDED THAT Bank of America and NBC may
make up to two (2) assignments of Commitments of less than $10,000,000 and
greater than or equal to $5,000,000 so long as such assignments are
otherwise effected in compliance with this SECTION 14.1, (iv) such assignee
shall have a Lending Office located in Canada if such Person is to be a
Lender under the Canadian Facilities, or in the United States if such
Person is to be a Lender under the US Facilities, (v) no consent of any
Agent or Consoltex Group shall be required in connection with any
assignment by a Lender to another Lender or to an affiliate of any Lender
(except for an assignment of the rights and obligations of an Issuing
Bank), (vi) each such assignment made as a result of a demand by any
Borrower pursuant to this SECTION 14.1(A) shall be arranged by the
Borrowers with the approval of the Agents, which approval shall not be
unreasonably withheld or delayed, and shall be either an assignment of all
of the rights and obligations of the assigning Lender under this Agreement
or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that,
in the aggregate, cover all of the rights and obligations of the assigning
Lender under this Agreement, (vii) no Lender shall be obligated to make any
such assignment as a result of a demand by any Borrower pursuant to this
SECTION 14.1(A) unless and until such Lender shall have received one or
more payments in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Loans, Reimbursement Obligations,
Participations in Loans and all other Obligations and amounts hereunder
owing to such Lender, together with accrued interest thereon to the date of
payment of such principal amount, from such Borrower or one or more
assignees otherwise permitted hereunder, and (viii) an assignment of the
Canadian Swing Line Facility shall occur only if (A) the entire Canadian
Swing Line Facility is assigned, (B) the institution which is the assigning
Canadian Swing Line Facility Lender also concurrently assigns to any other
Person all of its rights and obligations under the Canadian Revolving
Credit Facility, and (C) the institution which is the new Canadian Swing
Line Facility Lender is also a Canadian Revolving Credit Facility Lender.
For each assignment by a Canadian Facility Lender, the relevant Borrowers
hereby agree to execute upon request of the Canadian Agent (a) Bankers'
Acceptances documentation requested by the assignee and (b) any document as
may be required under the Security Instruments. Upon such execution,
delivery, approval and acceptance, from and after the effective date
specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations
hereunder or under any such Note have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and, if applicable, a holder of such Note and (y) the assignor
thereunder shall, to the extent that rights and obligations hereunder and,
if applicable, under its Note or Notes have been assigned by it pursuant to
such Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement. Any Lender who makes an assignment
shall pay to the applicable Agent a one-time administrative fee of US
$2,500 which fee shall not be reimbursable by the Borrowers. Each Issuing
Bank may assign its rights and obligations in such capacity to another
Lender only with respect to the total amount of the Canadian Letter of
Credit Facility or US Letter of Credit Facility (as the case may be),
subject to the written consent of each Relevant Agent and, subject to the
same conditions in the first sentence of this subsection (a) for such
consent, Consoltex Group, and also subject to execution and delivery of
documentation by such assignor and assignee Issuing Bank as may be
satisfactory to the Relevant Agents and the Borrowers.
() By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) the assignment
made under such Assignment and Acceptance is made under such Assignment and
Acceptance without recourse; (ii) such assigning Lender makes no
representation or warranty except that it is the legal and beneficial owner
of the interest being assigned by it and that such interest is free and
clear of any adverse claim; (iii) such assigning Lender assumes no
responsibility with respect to the financial condition of any Borrower or
any of the Subsidiaries or any other Guarantor or the performance or
observance by any Borrower or any Guarantor of any of its obligations under
any Loan Document or any other instrument or document furnished pursuant
hereto; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements
delivered pursuant to SECTION 9.5(A) or SECTION 10.1(A) OR (B), as the case
may be, and such other Loan Documents and other documents and information
as it has deemed appropriate to make its own credit analysis and decision
to enter into such Assignment and Acceptance; (v) such assignee will,
independently and without reliance upon the Agents, such assigning Lender
or any other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under any Loan Document; (vi) such assignee
appoints and authorizes the Relevant Agent to take such action as agent on
its behalf and to exercise such powers under the Loan Documents as are
delegated to the Agent by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations
which by the terms of the Loan Documents are required to be performed by it
as a Lender.
() The Relevant Agent shall maintain at its address referred to in
SECTION 14.2 a copy of each Assignment and Acceptance delivered to and
accepted by it.
() Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender (including assignments to an affiliate of such Lender or
to other Lenders), the Relevant Agent shall give prompt notice thereof to
the Borrowers.
() Nothing herein shall prohibit any Lender from pledging or
assigning, without notice to or consent of the Borrowers and without the
payment of the administrative fee referred to in SECTION 14.1(A), any Note
to any Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System.
() Each Lender may sell participations at its expense to one or more
banks or other financial institutions as to all or a portion of its rights
and obligations under this Agreement; PROVIDED, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder
of any Note issued to it for the purpose of this Agreement, (iv) such
participations shall be in a minimum amount of US $5,000,000 and shall
include an allocable portion of each of such Lender's Commitments and
Participations, (v) the Borrowers, the Agents and the other Lenders shall
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and with regard
to any and all payments to be made under this Agreement and (vi) neither
any Borrower nor any Guarantor shall be required to pay any additional
amounts (including, without limitation, under ARTICLE VII), or shall have
any additional obligations under or in respect of this Agreement, any Note
or any other Loan Document as a result of any such participation; PROVIDED,
that the participation agreement between a Lender and its participants may
provide that such Lender will obtain the approval of such participant
(which approval shall not be unreasonably withheld or delayed) prior to
such Lender's agreeing to any amendment or waiver of any provisions of any
Loan Document which would (A) extend the stated maturity of any Note or
Loan subject to such participation, (B) reduce the stated rates of interest
under the Facility or Facilities subject to such participation or (C)
increase the Commitment of the Lender granting the participation under the
Facility or Facilities subject to such participation, and (vi) the sale of
any such participation which would require any Borrower to file a
registration statement with the United States Securities and Exchange
Commission or under the securities regulations or laws of any state shall
not be permitted.
() No Borrower or Guarantor may assign any rights, powers, duties or
obligations under this Agreement or the other Loan Documents without the
prior written consent of all the Lenders, except in accordance with SECTION
11.2 OR 11.8.
.. NOTICES. Any notice shall be conclusively deemed to have been
received by any party hereto or to any other Loan Document and be effective
(i) on the day on which delivered (including hand delivery by commercial
courier service) to such party (against receipt therefor), (ii) on the date
of receipt at such address or telefacsimile number as may from time to time
be specified by such party in written notice to the other parties hereto or
otherwise received), in the case of notice by telegram or telefacsimile,
respectively (where the receipt of such message is verified by return), or
(iii) on the fifth Business Day after the day on which mailed, if sent
prepaid by certified or registered mail, return receipt requested, in each
case delivered, transmitted or mailed, as the case may be, to the address
or telefacsimile number, as appropriate, set forth below or such other
address or number as such party shall specify by notice hereunder:
() if to the Borrowers:
to such Borrower, in care of:
Consoltex (USA) INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Consoltex Group Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
() if to the Canadian Agent:
National Bank of Canada
Sun Life Building
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
National Bank of Canada
Sun Life Building
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
() if to the US Agent or the US Collateral Agent:
Bank of America, N.A.
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Bank of America, N.A.
Bank of America Corporate Center, 8th Floor
NC1-007-11
Charlotte, North Carolina 28255-0065
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
() if to the Lenders:
At the addresses set forth on the signature pages hereof and
on the signature page of each Assignment and Acceptance.
() if to Rafytek, in care of the Borrowers in accordance with
clause (a) above.
() if to Rafytica, in care of the Borrowers in accordance with
clause (a) above.
() if to Consoltex International, in care of the Borrowers in
accordance with clause (a) above.
() if to the Canadian Collateral Trustee:
▇▇▇▇▇▇▇▇▇▇ Trust Inc.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
Casier postal 34
▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Managing
Director, Corporate Trust Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
.. SETOFF. Upon (i) the occurrence and during the continuance of any
Event of Default and (ii) the making of the request or the granting of the
consent specified by SECTION 12.1(A) to authorize the Agents to declare the
Loans and the Notes due and payable pursuant to the provisions thereof,
each Lender is hereby authorized at any time and from time to time, to the
fullest extent permitted by applicable law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at
any time held (other than for safekeeping) and other indebtedness at any
time owing by such Lender to or for the credit or the account of any
Borrower against any and all of the obligations of such Borrower due and
payable at such time under this Agreement and the Loans and the Note or
Notes held by such Lender. Each Lender agrees promptly to notify the
applicable Borrower after any such setoff and application is made by such
Lender; PROVIDED that the failure to give such notice shall not affect the
validity of such setoff and application. Nothing in this SECTION 14.3
shall be construed to grant a right of setoff against any Person other than
any Borrower.
.. SURVIVAL. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans
and the issuance of the Letters of Credit and the execution and delivery to
the Lenders of this Agreement and the Notes and shall continue in full
force and effect so long as any of Obligations remain outstanding or any
Lender has any Commitment hereunder, PROVIDED that any indemnification
granted hereunder or under any other Loan Document shall also survive, and
continue in full force and effect after, the termination of any Obligations
and Commitments. Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
permitted assigns of such party and all covenants, provisions and
agreements by or on behalf of the Borrowers which are contained in the Loan
Documents shall inure to the benefit of the successors and permitted
assigns of the Lenders or any of them.
.. EXPENSES. The Borrowers agree (a) to pay or reimburse each Agent
for all its reasonable out-of-pocket costs and expenses incurred in
connection with the preparation, negotiation and execution of, and any
amendment, supplement or modification to, any of the Loan Documents
(including due diligence expenses and travel expenses), and the
consummation of the transactions contemplated thereby, including the
reasonable and documented (in reasonable detail) fees and disbursements and
service charges of external counsel to each such Agent, (b) to pay or
reimburse each Agent and each of the Lenders for all their out-of-pocket
costs and expenses incurred in connection with the enforcement or
preservation of any rights under the Loan Documents, including the
reasonable and documented (in reasonable detail) fees, disbursements and
service charges of their external counsel, and (c) to pay, indemnify and
hold each Agent and each of the Lenders harmless from any and all recording
and filing fees and any and all liabilities with respect to, or resulting
from any failure to pay or delay in paying, documentary, stamp, excise and
other similar taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of any of the Loan
Documents, or consummation of any amendment, supplement or modification of,
or any waiver or consent under or in respect of, any Loan Document.
.. AMENDMENTS. No amendment, modification or waiver of any provision of
any Loan Document, no release of Collateral (other than the release of CAN
$2,000,000 or less of fair value of Collateral, per Fiscal Year, which
shall require the prior written consent only of both Agents) and no consent
by the Lenders to any departure therefrom by any Borrower or any Guarantor
shall be effective unless such amendment, modification, waiver (including
without limitation the waiver of any Event of Default or of any condition
to the making of an Advance or the issuance of a Letter of Credit or
acceptance of any Bankers' Acceptance on any date other than the Closing
Date) or release of such amount of Collateral shall be in writing and
signed by the Agents, shall have been approved by the Required Lenders
through their written consent, and the same shall then be effective only
for the period and on the conditions and for the specific instances and
purposes specified in such writing; PROVIDED, HOWEVER, that, no such
amendment, modification or waiver
() which changes, extends or waives any provision of SECTION
3.7, 5.7, 13.9 or this SECTION 14.6, which reduces the principal
amount of, the stated rate of interest payable on or fees payable
hereunder in connection with, any Loans or Reimbursement
Obligations (other than any Loan that is solely for the account
of either Agent), which extends the due date of any scheduled
principal installment of or interest or fee payment on any Loans
or Reimbursement Obligations (other than any Loan that is solely
for the account of either Agent), which changes the definition of
Required Lenders, which permits an assignment by any Borrower or
any Guarantor of its Obligations under any Loan Document (other
than in accordance with SECTIONS 11.2 OR 11.8), which reduces the
required consent of Lenders provided hereunder, which increases
or extends (other than pursuant to the express terms hereof) any
Commitment or the Total Commitment, or which creates, increases
or extends (other than pursuant to the express terms hereof) any
other commitment or obligation of any Lender to make any loan,
extend any credit or issue any letter of credit or banker's
acceptance, shall be effective unless in writing and signed by
each of the Lenders; or
(ii) which releases (A) a material portion of the Collateral
in which the Liens granted pursuant to the Security Instruments
(other than a release pursuant to the terms thereof) were
intended to be perfected or (B) the obligation of any Guarantor
under any Facility Guaranty (other than a release pursuant to the
terms thereof) unless in writing and signed by each of the
Lenders; PROVIDED, however, the release of CAN $2,000,000 or less
of fair value of Collateral per Fiscal Year shall require the
consent only of both Agents; or
(iii) which affects the rights, privileges or obligations of
either Issuing Bank shall be effective unless signed in writing
by such Issuing Bank; or
(iv) which affects the rights, privileges, immunities or
indemnities of either Agent shall be effective unless in writing
and signed by such Agent.
Notwithstanding any provision of the other Loan Documents to the contrary,
as between the Agents and the Lenders, execution by either Agent shall not
be deemed conclusive evidence that such Agent has obtained the written
consent of the Required Lenders. No delay or omission on any Lender's or
either Agent's part in exercising any right, remedy or option shall operate
as a waiver of such or any other right, remedy or option or of any Default
or Event of Default.
.. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed
an original, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such fully-executed
counterpart.
.. TERMINATION. The termination of this Agreement shall not affect
any rights of any Borrower, any Lender or either Agent or any obligation of
any Borrower, any Lender or either Agent, arising prior to the effective
date of such termination, and the provisions hereof shall continue to be
fully operative until all Commitments have been terminated and the
Obligations arising prior to such termination have been paid in full. The
rights granted to the Agents, the US Collateral Agent and the Canadian
Collateral Trustee for the benefit of the Lenders under the Loan Documents
shall continue in full force and effect, notwithstanding the termination of
this Agreement, until all of the Obligations have been Fully Satisfied or
the Borrowers have furnished the Lenders and the Agents with an
indemnification satisfactory to each Agent and each Lender with respect
thereto. Notwithstanding the foregoing, if after receipt of any payment of
all or any part of the Obligations, any Lender is for any reason compelled
to surrender such payment to any Person because such payment is determined
to be void or voidable as a preference, impermissible setoff, a diversion
of trust funds or for any other reason, such Obligations under this
Agreement shall be reinstated and the Borrowers shall be liable to, and
shall indemnify and hold such Lender harmless for, the amount of such
payment surrendered until such Lender shall have been paid in full. The
provisions of the foregoing sentence shall be and remain effective
notwithstanding any contrary action which may have been taken by the
Lenders in reliance upon such payment, and any such contrary action so
taken shall be without prejudice to the Lenders' rights under this
Agreement and shall be deemed to have been conditioned upon such payment
having become final and irrevocable.
.. INDEMNIFICATION; LIMITATION OF LIABILITY. In consideration of the
execution and delivery of this Agreement by each Agent and each Lender and
the making of Loans and the issuance of Letters of Credit, each Borrower
hereby jointly and severally indemnifies, exonerates and holds each Agent,
each Issuing Bank, the Canadian Collateral Trustee, the US Collateral
Agent, and each Lender and each of their respective officers, directors,
employees, agents and advisors (collectively, the "Indemnified Parties";
and, with respect to any one Agent, Issuing Bank, Canadian Collateral
Trustee, US Collateral Agent or Lender, and its respective officers,
directors, employees, agents and advisors being, in relation to each other,
a "Related Indemnified Party") free and harmless from and against any and
all claims, actions, causes of action, suits, losses, costs, liabilities
and damages, and expenses, including reasonable and documented (in
reasonable detail) attorneys' fees, disbursements and service charges
(collectively, the "Indemnified Liabilities") that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out
of or in connection with or by reason of, or in connection with the
execution, delivery, enforcement or performance of this Agreement and the
other Loan Documents (including, without limitation, the issuance or
transfer of, or payment or failure to pay under any Letter of Credit), or
any transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Loan or Letter of Credit, whether or
not such action is brought against either Agent or any Lender, the
shareholders or creditors of either Agent or any Lender or an Indemnified
Party or an Indemnified Party is otherwise a party thereto and whether or
not the transactions contemplated herein are consummated, except (a) to the
extent such claim, damage, loss, liability or expense has resulted from the
gross negligence or willful misconduct of such Indemnified Party or any of
its Related Indemnified Parties, or such Indemnified Party's violation of
applicable law or failure to make an Advance or issue a Letter of Credit or
accept a Bankers' Acceptance in violation of this Agreement, (b) results
from claims of an Agent or a Lender solely against one or more other Agents
or Lenders, (c) in the case of any Letter of Credit, is caused by the
failure of either Issuing Bank to pay under any Letter of Credit after
presentation to it of a request for payment strictly complying with the
terms thereof, unless such payment is prohibited by applicable law or
judicial order or decree or (d) results from an action initiated by any
Borrower or Guarantor against either Agent, the US Collateral Agent, the
Canadian Collateral Trustee, or any Lender in which such Borrower or
Guarantor prevails, and if and to the extent that the foregoing undertaking
may be unenforceable for any reason, each Borrower hereby agrees to make
the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities for which otherwise such Borrower is liable under
this SECTION 14.9 which is permissible under applicable law. The Borrowers
agree that no Indemnified Party shall have any liability (whether direct or
indirect, in contract or tort or otherwise) to it, any of its Subsidiaries,
any Guarantor, or any security holders or creditors thereof arising out of,
related to or in connection with the transactions contemplated herein,
except to the extent that such liability is found in a final non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct or from such
Indemnified Party's failure to make an Advance or issue a Letter of Credit
or accept a Bankers' Acceptance in violation of this Agreement or failure
to pay under any Letter of Credit after presentation to it of a request for
payment strictly complying with the terms thereof; PROVIDED, HOWEVER, in no
event shall any Indemnified Party be liable for consequential, indirect or
special, as opposed to direct, damages. So long as no Acceleration Event
has occurred, no Indemnified Party shall settle or otherwise pay or agree
to pay any claim for which any Borrower is obligated to provide
indemnification under the Loan Documents without the prior written consent
of such Borrower, which consent shall not be unreasonably withheld and
shall be deemed to have been given unless such Borrower objects to such
settlement within ten (10) Business Days after notice thereof.
.. CONFIDENTIALITY. Neither any Agent nor any Lender shall disclose
any Confidential Information to any Person without the prior consent of
Consoltex Group, other than (a) to such Agent's or such Lender's Affiliates
and their officers, directors, employees, agents, counsels, accountants,
and advisors and then only on a confidential and a "need to know" basis,
(b) so long as such Person agrees to preserve the confidentiality of such
Confidential Information on the terms set forth in this SECTION 14.10, to
actual and prospective assignees and participants, (c) as required by any
law, rule or regulation or by judicial process, (d) to other Agents and
other Lenders, (e) as requested or required by any state, federal or
foreign authority or examiner regulating banks or banking; PROVIDED,
HOWEVER, that, with respect to clause (c) above, the Relevant Agent and
each applicable Lender agrees to notify the Borrower promptly of any such
request for the disclosure of Confidential Information unless such
notification is prohibited by applicable law, rule or regulation or by
judicial process.
.. SEVERABILITY. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or
more of the parties hereto, then such provision shall remain in effect with
respect to all parties, if any, as to whom such provision is neither
illegal nor invalid, and in any event all other provisions hereof shall
remain effective and binding on the parties hereto.
.. ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents, constitutes the entire agreement among the parties with respect
to the subject matter hereof and supersedes all previous proposals,
negotiations, representations, commitments and other communications between
or among the parties, both oral and written, with respect thereto.
.. AGREEMENT CONTROLS. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any express term of
this Agreement, the terms and provisions of this Agreement shall control to
the extent of such conflict.
.. USURY SAVINGS CLAUSE. Notwithstanding any other provision
herein, the aggregate interest rate charged under any of the Notes,
including all charges or fees in connection therewith deemed in the nature
of interest under applicable law shall not exceed the Highest Lawful Rate
(as such term is defined below). If the rate of interest (determined
without regard to the preceding sentence) under this Agreement at any time
exceeds the Highest Lawful Rate (as defined below), the outstanding amount
of the Loans made hereunder shall bear interest at the Highest Lawful Rate
until the total amount of interest due hereunder equals the amount of
interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect. In
addition, if when the Loans made hereunder are repaid in full the total
interest due hereunder (taking into account the increase provided for
above) is less than the total amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had
at all times been in effect, then to the extent permitted by law, the
Borrowers shall pay to the Agents an amount equal to the difference between
the amount of interest paid and the amount of interest which would have
been paid if the Highest Lawful Rate had at all times been in effect.
Notwithstanding the foregoing, it is the intention of the Lenders and the
Borrowers to conform strictly to any applicable usury laws. Accordingly,
if any Lender contracts for, charges, or receives any consideration which
constitutes interest in excess of the Highest Lawful Rate, then any such
excess shall be canceled automatically and, if previously paid, shall at
such Lender's option be applied to the outstanding amount of the Loans made
hereunder or be refunded to the Borrowers. As used in this paragraph, the
term "Highest Lawful Rate" means the maximum lawful interest rate, if any,
that at any time or from time to time may be contracted for, charged, or
received under the laws applicable to such Lender which are presently in
effect or, to the extent allowed by law, under such applicable laws which
may hereafter be in effect and which allow a higher maximum nonusurious
interest rate than applicable laws now allow.
.. GOVERNING LAW; WAIVER OF JURY TRIAL; CHOICE OF LANGUAGE.
() THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
() EACH OF THE PARTIES HERETO HEREBY EXPRESSLY AND IRREVOCABLY
AGREES AND CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN
MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY
OF NEW YORK, STATE OF NEW YORK, UNITED STATES OF AMERICA OR IN ANY
COMPETENT COURT SITTING IN ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ AND, BY THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF THE PARTIES HERETO EXPRESSLY WAIVES ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN, OR TO THE
EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY SUCH COURT
IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
() EACH OF THE PARTIES HERETO AGREES THAT SERVICE OF PROCESS MAY
BE MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR
OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY
REGISTERED OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF SUCH
PARTY PROVIDED IN SECTION 14.2, OR BY ANY OTHER METHOD OF SERVICE
PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW
YORK OR IN THE PROVINCE OF QUBEC.
() NOTHING CONTAINED IN SUBSECTIONS (A), (B) OR (C) HEREOF SHALL
PRECLUDE ANY OF THE PARTIES HERETO FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE
COURTS OF ANY JURISDICTION WHERE ANY SUCH PARTY OR ANY OF SUCH PARTY'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED
BY THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH
COURT AND EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR
PROCEEDING, OBJECTION TO THE EXERCISE OF JURISDICTION OVER IT AND ITS
PROPERTY BY ANY SUCH OTHER COURT OR COURTS WHICH NOW OR HEREAFTER MAY
BE AVAILABLE UNDER APPLICABLE LAW.
() IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR
REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE
BE DELIVERED IN CONNECTION THEREWITH, EACH BORROWER, EACH AGENT, EACH
ISSUING BANK AND EACH LENDER HEREBY AGREES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE
TO TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING.
() THE PARTIES HERETO HAVE EXPRESSLY REQUIRED THAT THIS AGREEMENT
AND ANY OTHER LOAN DOCUMENTS AND ALL DEEDS, DOCUMENTS AND NOTICES
RELATING THERETO BE DRAFTED IN THE ENGLISH LANGUAGE; LES PARTIES AUX
PRSENTES ONT EXPRESSMENT EXIG QUE LA PRSENTE
CONVENTION ET LES AUTRES CONTRATS ET DOCUMENTS ▇▇▇▇▇▇▇ AUX
PRSENTES COMME TANT DES "LOAN DOCUMENTS" ET TOUS LES AUTRES
CONTRATS, DOCUMENTS OU AVIS QUI Y SONT AFFRENTS SOIENT
RDIGS EN LANGUE ANGLAISE.
.. CONSENT OF GUARANTORS. Each of the Guarantors has joined in the
execution of this Agreement 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.
[Signatures on following pages]
SIGNATURE PAGE 1 of 12
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 GROUP INC.,
as Borrower and as Guarantor
By:
Name:
Title:
By:
Name:
Title:
CONSOLTEX INC.,
as Borrower and as Guarantor
By:
Name:
Title:
By:
Name:
Title:
CONSOLTEX (USA) INC.,
as Borrower and as Guarantor
By:
Name:
Title:
By:
Name:
Title:
THE BALSON-HERCULES GROUP LTD.,
as Borrower and as Guarantor
By:
Name:
Title:
By:
Name:
Title:
LINQ INDUSTRIAL FABRICS, INC.,
as Borrower and as Guarantor
By:
Name:
Title:
By:
Name:
Title:
CONSOLTEX MEXICO, S.A. DE C.V.,
as Borrower and as Guarantor
By:
Name:
Title:
By:
Name:
Title:
GUARANTORS:
CONSOLTEX INTERNATIONAL INC., as
Guarantor
By:
Name:
Title:
RAFYTEK, S.A. de C.V., as Guarantor
By:
Name:
Title:
RAFYTICA, S.A., as Guarantor
By:
Name:
Title:
▇▇▇▇ ▇▇▇, S.A. de C.V., as Guarantor
By:
Name:
Title:
MARINO TECHNOLOGIES INCORPORATED, as
Guarantor
By:
Name:
Title:
WALPOLE, 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:
AGENTS:
NATIONAL BANK OF CANADA,
as Canadian Agent
By:
Name:
Title:
BANK OF AMERICA, N.A.,
as US Agent
By:
Name:
Title:
LENDERS:
NATIONAL BANK OF CANADA
By:
Name:
Title:
By:
Name:
Title:
Lending Office:
Sun Life Building
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
US $: Bank One International Corporation
New York Branch
Syndication Loans Department
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
ABA No.: ▇▇▇▇▇▇▇▇▇
CHIPS No.: 0979
Re: Consoltex
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇
▇▇▇▇▇▇
CAN $: Par Swift/Transfert
BNDC CAMMINT IN FAVOUR OF:
National Bank of Canada
Syndication Loans Department
▇▇▇, ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ West
Main Branch
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Re: Consoltex
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇
▇▇▇▇▇▇
NATIONAL BANK OF CANADA (U.S. DIVISION)
By:
Name:
Title:
By:
Name:
Title:
Lending Office:
National Bank of Canada
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
National Bank of Canada
ABA# ▇▇▇-▇▇▇-▇▇▇
Account No.: ▇▇-▇▇▇-▇▇▇
Reference: Consoltex
Attention: Cross Border Department
BANK OF AMERICA, N.A.
By:
Name:
Title:
Lending Office:
Bank of America, National Association
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Bank of America, National Association
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 136621-22506
Reference: Consoltex
Attention: Corporate Credit Support
BANKBOSTON, N.A.
By:
Name:
Title:
Lending Office:
BankBoston, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
BankBoston
Boston, Massachusetts
ABA# ▇▇▇-▇▇▇-▇▇▇
Account No.: 29880
Reference: Consoltex
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Commercial Loan
Services, for further credit
to Consoltex ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By:
Name:
Title:
By:
Name:
Title:
Lending Office:
The Bank of Nova Scotia
Scotia Tower, Main Branch
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
The Bank of Nova Scotia
ABA# 002 ▇▇▇▇▇
Account No.:
Reference: Consoltex
Attention: ▇▇▇▇▇ ▇▇▇▇▇
THE BANK OF NOVA SCOTIA
By:
Name:
Title:
By:
Name:
Title:
Lending Office:
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ Morale
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
The Bank of Nova Scotia
ABA# ▇▇▇-▇▇▇-▇▇▇
Account No.: N/A
Reference: Consoltex
Attention: Loan Accounting
FLEET BUSINESS CREDIT CORPORATION (successor
to Sanwa Business Credit Corp.)
By:
Name:
Title:
Lending Office:
Fleet Capital Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Fleet Business Credit Corporation
ABA# ▇▇▇-▇▇▇-▇▇▇
Account No.: 937-001-5120
Reference: Consoltex
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
A-1
EXHIBIT A
Applicable Commitment Percentages
A. PRE-FUNDING APPLICABLE COMMITMENT PERCENTAGES. The following
Applicable Commitment Percentages are effective from the Closing Date to
but not including the Tranche B Funding Date:
I. TOTAL FACILITIES
Applicable
Commitment
LENDER
COMMITMENT
PERCENTAGE
National Bank of Canada $19,963,235.00 20.▇▇▇▇▇▇▇▇▇▇%
Bank of America, N.A. $26,507,353.24 27.5401072649%
Fleet Business Credit Corporation $16,985,294.10 17.6470588017%
BankBoston, N.A $11,323,529.42 11.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia $ 7,500,000.00 7.▇▇▇▇▇▇▇▇▇▇%
National Bank of Canada, U.S. Division $ 8,970,588.24 9.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia, U.S. Division $ 5,000,000.00 5.▇▇▇▇▇▇▇▇▇▇%
Total Commitment $ 96,250,000.00 100.0000000000%
II. CANADIAN REVOLVING CREDIT FACILITY
Applicable
CANADIAN REVOLVING CREDIT Commitment
FACILITY LENDERS COMMITMENT PERCENTAGE
National Bank of Canada $14,705,882.06 71.▇▇▇▇▇▇▇▇▇▇%
Bank of America, N.A. $ - 0.0000000000%
Fleet Business Credit Corporation $ - 0.0000000000%
BankBoston, N.A $ - 0.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia $ 5,882,352.94 28.▇▇▇▇▇▇▇▇▇▇%
National Bank of Canada, U.S. Division $ - 0.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia, U.S. Division $ - 0.▇▇▇▇▇▇▇▇▇▇%
Total Commitment $20,588,235.00 100.0000000000%
III. CANADIAN TERM LOAN FACILITY
Applicable
CANADIAN TERM LOAN Commitment
FACILITY LENDERS COMMITMENT PERCENTAGE
National Bank of Canada $ 5,257,352.93 76.▇▇▇▇▇▇▇▇▇▇%
Bank of America, N.A. $ - 0.0000000000%
Fleet Business Credit Corporation $ - 0.0000000000%
BankBoston, N.A $ - 0.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia $ 1,617,647.07 23.▇▇▇▇▇▇▇▇▇▇%
National Bank of Canada, U.S. Division $ - 0.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia, U.S. Division $ - 0.▇▇▇▇▇▇▇▇▇▇%
Total Commitment $6,875,000.00 100.0000000000%
IV. US REVOLVING CREDIT FACILITY
Applicable
US REVOLVING CREDIT Commitment
FACILITY LENDERS COMMITMENT PERCENTAGE
National Bank of Canada $ - 0.0000000000%
Bank of America, N.A. $17,352,941.48 47.0119526221%
Fleet Business Credit Corporation $10,147,058.82 27.4900396151%
BankBoston, N.A. $ 6,764,705.88 18.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia $ - 0.▇▇▇▇▇▇▇▇▇▇%
National Bank of Canada,U.S. Division $ 2,647,058.82 7.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia, U.S. Division $ - 0.▇▇▇▇▇▇▇▇▇▇%
Total Commitment $36,911,765.00 100.0000000000%
V. US TERM LOAN FACILITY
Applicable
US TERM LOAN FACILITY Commitment
LENDERS COMMITMENT PERCENTAGE
National Bank of Canada $ - 0.0000000000%
Bank of America, N.A. $2,830,882.35 41.1764705979%
Fleet Business Credit Corporation $2,426,470.58 35.2941174641%
BankBoston, N.A. $1,617,647.07 23.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia $ - 0.▇▇▇▇▇▇▇▇▇▇%
National Bank of Canada, U.S. Division $ - 0.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia, U.S. Division $ - 0.▇▇▇▇▇▇▇▇▇▇%
Total Commitment $6,875,000.00 100.0000000000%
VI. TERM B LOAN FACILITY
Applicable
TERM B LOAN FACILITY Commitment
LENDERS COMMITMENT PERCENTAGE
National Bank of Canada $ - 0.0000000000%
Bank of America, N.A. $ 6,323,529.42 25.2941176604%
Fleet Business Credit Corporation $ 4,411,764.70 17.▇▇▇▇▇▇▇▇▇▇%
BankBoston, N.A. $ 2,941,176.47 11.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia $ - 0.▇▇▇▇▇▇▇▇▇▇%
National Bank of Canada, U.S. Division $ 6,323,529.42 25.2941176604%
The Bank of Nova Scotia, U.S. Division $ 5,000,000.00
20.0000000000%
Total Commitment $25,000,000.00 100.0000000000%
B. POST-FUNDING APPLICABLE COMMITMENT PERCENTAGES. The following
Applicable Commitment Percentages will become effective on the Tranche B
Funding Date:
I. TOTAL FACILITIES
Applicable
Commitment
LENDER
COMMITMENT
PERCENTAGE
National Bank of Canada $19,963,235.00 17.▇▇▇▇▇▇▇▇▇▇%
Bank of America, N.A. $32,860,294.43 28.▇▇▇▇▇▇▇▇▇▇%
Fleet Business Credit Corporation $20,161,764.68 17.6470587981%
BankBoston, N.A
$13,441,176.47
11.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia $ 7,500,000.00 6.▇▇▇▇▇▇▇▇▇▇%
National Bank of Canada, U.S. Division $15,323,529.42 13.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia, U.S. Division $ 5,000,000.00 4.▇▇▇▇▇▇▇▇▇▇%
Total Commitment $114,250,000.00 100.0000000000%
II. CANADIAN REVOLVING CREDIT FACILITY
Applicable
CANADIAN REVOLVING CREDIT Commitment
FACILITY LENDERS COMMITMENT PERCENTAGE
National Bank of Canada $14,705,882.06 71.▇▇▇▇▇▇▇▇▇▇%
Bank of America, N.A. $ - 0.0000000000%
Fleet Business Credit Corporation $ - 0.0000000000%
BankBoston, N.A $ - 0.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia $ 5,882,352.94 28.▇▇▇▇▇▇▇▇▇▇%
National Bank of Canada, U.S. Division $ - 0.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia, U.S. Division $ - 0.▇▇▇▇▇▇▇▇▇▇%
Total Commitment $20,588,235.00 100.0000000000%
III. CANADIAN TERM LOAN FACILITY
Applicable
CANADIAN TERM LOAN Commitment
FACILITY LENDERS COMMITMENT PERCENTAGE
National Bank of Canada $ 5,257,352.93 76.▇▇▇▇▇▇▇▇▇▇%
Bank of America, N.A. $ - 0.0000000000%
Fleet Business Credit Corporation $ - 0.0000000000%
BankBoston, N.A $ - 0.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia $ 1,617,647.07 23.▇▇▇▇▇▇▇▇▇▇%
National Bank of Canada, U.S. Division $ - 0.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia, U.S. Division $ - 0.▇▇▇▇▇▇▇▇▇▇%
Total Commitment $6,875,000.00 100.0000000000%
IV. US REVOLVING CREDIT FACILITY
Applicable
US REVOLVING CREDIT Commitment
FACILITY LENDERS COMMITMENT PERCENTAGE
National Bank of Canada $ - 0.0000000000%
Bank of America, N.A. $17,352,941.48 47.0119526221%
Fleet Business Credit Corporation $10,147,058.82 27.4900396151%
BankBoston, N.A. $ 6,764,705.88 18.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia $ - 0.▇▇▇▇▇▇▇▇▇▇%
National Bank of Canada,U.S. Division $ 2,647,058.82 7.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia, U.S. Division $ - 0.▇▇▇▇▇▇▇▇▇▇%
Total Commitment $36,911,765.00 100.0000000000%
V. US TERM LOAN FACILITY
Applicable
US TERM LOAN FACILITY Commitment
LENDERS COMMITMENT PERCENTAGE
National Bank of Canada $ - 0.0000000000%
Bank of America, N.A. $2,830,882.35 41.1764705979%
Fleet Business Credit Corporation $2,426,470.58 35.2941174641%
BankBoston, N.A. $1,617,647.07 23.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia $ - 0.▇▇▇▇▇▇▇▇▇▇%
National Bank of Canada, U.S. Division $ - 0.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia, U.S. Division $ - 0.▇▇▇▇▇▇▇▇▇▇%
Total Commitment $6,875,000.00 100.0000000000%
VI. TERM B LOAN FACILITY
Applicable
TERM B LOAN FACILITY Commitment
LENDERS COMMITMENT PERCENTAGE
National Bank of Canada $ - 0.0000000000%
Bank of America, N.A. $ 12,676,470.60 29.4801641860%
Fleet Business Credit Corporation $ 7,588,235.28 17.6470587907%
BankBoston, N.A. $ 5,058,823.52 11.▇▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia $ - 0.▇▇▇▇▇▇▇▇▇▇%
National Bank of Canada, U.S. Division $ 12,676,470.60 29.4801641860%
The Bank of Nova Scotia, U.S. Division $ 5,000,000.00
11.6279069767%
Total Commitment $43,000,000.00 100.0000000000%
B-1
EXHIBIT B
Form of Assignment and Acceptance
DATED ,
Reference is made to the Amended and Restated Credit Agreement dated
as of October 25, 1999 (the "Agreement") among CONSOLTEX GROUP INC.,
CONSOLTEX INC., CONSOLTEX (USA) INC., THE BALSON-HERCULES GROUP LTD., LINQ
INDUSTRIAL FABRICS, INC. and CONSOLTEX MEXICO, S.A. de C.V. (the
"Borrowers"), the Lenders (as defined in the Agreement), and each of
National Bank of Canada and Bank of America, N.A. as Agents for the Lenders
(the "Agents"). Unless otherwise defined herein, terms defined in the
Agreement are used herein with the same meanings.
(the "Assignor") and
(the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, WITHOUT RECOURSE,
a _______% {1} interest in and to all of the Assignor's rights and
obligations under the Agreement as of the Effective Date (as defined
below), in the [CANADIAN REVOLVING CREDIT LOANS] [THE CANADIAN TERM LOAN]
[THE US REVOLVING CREDIT LOANS] [THE US TERM LOAN] [THE TERM B LOAN] owing
to the Assignor on the Effective Date, and evidenced by the applicable
Notes held by the Assignor.
2. The Assignor (i) represents and warrants that, as of the Effective
Date, (A) the aggregate outstanding principal amounts of the [CANADIAN
TERM] [US TERM] [TERM B] Loan comprising Advances owing to it and (with
respect only to the Canadian Term Loan) Bankers' Acceptances (without
giving effect to assignments thereof which have not yet become effective)
is US $__________ (Advances: US $__________, Bankers' Acceptances listed in
Schedule "A" hereto: CAN $__________) [UNDER A NOTE DATED __________, 19__
IN THE PRINCIPAL AMOUNT OF US $__________], (B) the aggregate principal
amount of [CANADIAN] [US] Revolving Credit Loans comprising Advances owing
to it and (with respect only to the Canadian Revolving Credit Loans)
Bankers' Acceptances (without giving effect to the assignments thereof
which have not yet become effective) is US $__________ (Advances:
US $__________, Bankers' Acceptances listed in Schedule "A" hereto:
CAN $__________) [UNDER A NOTE DATED ____________, 19__ IN THE PRINCIPAL
AMOUNT OF $__________], and (C) the aggregate principal amount of the
Participations purchased by it (without giving effect to the assignments
thereof which have not yet become effective) is US $_________; (ii)
represents and warrants that it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and
clear of any adverse claim and makes no other representation or warranty;
(iii) makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with the Agreement or any of the Loan Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Agreement or any of the Loan Documents or any other instrument
or document furnished pursuant thereto; (iv) makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of any Borrower, any Guarantor or any other Subsidiary or the
performance or observance by any Borrower or any Guarantor of any of its
obligations under any of the Loan Documents or any other instrument or
document furnished pursuant thereto and (v) attaches hereto the Notes
referred to in paragraph 1 above and requests that the Agent exchange such
Notes for replacement Notes as follows: a Note with respect to the US
Revolving Credit Facility dated _____________, 19__ in the principal amount
of US $________________, and a Note with respect to the US Term Loan
Facility or Term B Loan Facility, as applicable, dated __________, 19__ in
the principal amount of US $__________ each payable to the order of the
Assignor, and a Note with respect to the US Revolving Credit Facility,
dated ____________________________ 19__, in the principal amount of
US $_________________ and a Note with respect to the US Term Loan Facility
or Term B Loan Facility, as applicable, dated _________________, 19___ in
the principal amount of US $_________, each payable to the order of the
Assignee.
3. The Assignee (i) confirms that it has received a copy of the
Agreement, together with copies of the financial statements referred to in
SECTION 9.5(A) OR 10.1(A) OR (B) thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Acceptance; (ii) agrees that
it will, independently and without reliance upon the Agents, the Assignor,
or any other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under any Loan Document; (iii) appoints and
authorizes the [CANADIAN] [US] Agent to take such actions on its behalf and
to exercise such powers under the Loan Documents as are delegated to the
[CANADIAN] [US] Agent by the terms thereof, together with such powers as
are reasonably incidental thereto; (iv) will perform all of the obligations
which by the terms of the Agreement are required to be performed by the
Lender; and (v) specifies as its address for notices the office set forth
beneath its name on the signature pages hereof and attaches the necessary
IRS forms if applicable to it.
4. The effective date for this Assignment and Acceptance shall be
_____________________________ (the "Effective Date"). Following the
execution of this Assignment and Acceptance, it will be delivered to the
[CANADIAN] [US] Agent for acceptance and recording by the [Canadian] [US]
Agent.
5. Upon such acceptance and recording, as of the Effective Date, (i) the
Assignee shall be a party to the Agreement and, to the extent provided in
this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the Loan Documents, (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Agreement and the other Loan
Documents and (iii) with respect to the Bankers' Acceptances listed in
Schedule "A" hereto the Assignee shall pay to the Assignor upon demand of
the Assignor in immediately available funds the Assignee's portion (to be
calculated in proportion to the percentage interest mentioned in SECTION 1
above) of the face value of such Bankers' Acceptances which the applicable
Borrowers under a Canadian Facility would not pay to the Assignor upon
maturity of such Bankers' Acceptances, and thus acquire a portion, to be
calculated in the same manner, of the right of the Assignor to be repaid by
such Borrower any amount owed by such Borrower pursuant thereto.
6. Upon such acceptance and recording, from and after the Effective
Date, the [CANADIAN] [US] Agent shall make all payments under the Agreement
and Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest, commitment fees and letter
of credit fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make directly between themselves all appropriate adjustments
in payments made and fees paid under the Agreement and the Notes for
periods prior to, or the beginning of which was prior to, the Effective
Date.
7. The Assignor shall cause the bond certificate issued by Consoltex
and the bond certificate issued by Consoltex Group, both of which are
registered in the name of the Assignor to be presented to the Canadian
Collateral Trustee for cancellation and for issuance in lieu thereof of a
bond certificate to be registered in the name of the Assignee (or in the
case of partial assignment of bond certificates registered in the name of
the assignee and bond certificates registered in the name of the assignor,
the nominal amount of which shall be in proportion to their respective
commitments from and after the Effective Date).
**FOOTNOTES**
{1} Specify percentage in no more than 4 decimal points; duplicate
sentence if assignment is more than one facility and the percentage varies
between assignments.
8. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of State of New York.
[NAME OF ASSIGNOR]
By:
Name:
Title:
Notice Address:
After the Effective Date
Canadian Revolving
Credit Facility:
Commitment %___________
Outstanding
Principal Amount $___________
Canadian Letter
of Credit
Participations
Commitment %___________
Outstanding
Principal Amount $___________
Canadian Term
Loan Facility:
Commitment %___________
Outstanding
Principal Amount $___________
US Revolving
Credit Facility:
Commitment %___________
Outstanding
Principal Amount $___________
US Letter of Credit
Participations:
Commitment %___________
Outstanding
Principal Amount $___________
US Term Loan
Facility:
Commitment %___________
Outstanding
Principal Amount $___________
Term B Loan
Facility:
Commitment %___________
Outstanding
Principal Amount $___________
[NAME OF ASSIGNEE]
By:
Name:
Title:
Notice Address/Lending Office
____________________
____________________
____________________
Wire transfer Instructions:
____________________
____________________
____________________
After the Effective Date
Canadian Revolving
Credit Facility:
Commitment %___________
Outstanding
Principal Amount $___________
Canadian Letter
of Credit
Participations
Commitment %___________
Outstanding
Principal Amount $___________
Canadian Term
Loan Facility:
Commitment %___________
Outstanding
Principal Amount $___________
US Revolving Credit
Facility:
Commitment %___________
Outstanding
Principal Amount $___________
US Letter of Credit
Participations:
Commitment %___________
Outstanding
Principal Amount $___________
US Term Loan Facility:
Commitment %___________
Outstanding
Principal Amount $___________
Term B Loan Facility:
Commitment %___________
Outstanding
Principal Amount $___________
Accepted this ____ day of _______, 19__
[NATIONAL BANK OF CANADA, AS AGENT
BY:
Name:
Title: ]
or
[BANK OF AMERICA, N.A. AS AGENT
BY:
Name:
Title: ]
Consented to as of the ___
day of ____________, 19___:
CONSOLTEX GROUP INC.
By:
Name:
Title:
C-1
EXHIBIT C
Notice of Appointment (or Revocation) of Authorized Representative
Reference is hereby made to the Amended and Restated Credit Agreement
dated as of October 25, 1999 (the "Agreement") among CONSOLTEX GROUP INC.,
CONSOLTEX INC., CONSOLTEX (USA) INC., THE BALSON-HERCULES GROUP LTD., LINQ
INDUSTRIAL FABRICS, INC. and CONSOLTEX MEXICO, S.A. de C.V. (the
"Borrowers"), the Lenders (as defined in the Agreement), and each of
National Bank of Canada and Bank of America, National Association, as
Agents for the Lenders (the "Agents"). Capitalized terms used but not
defined herein shall have the respective meanings therefor set forth in the
Agreement.
[The Borrowers hereby nominate, constitute and appoint each
individual named below as an Authorized Representative under the Loan
Documents, and hereby represent and warrant that (i) set forth opposite
each such individual's name is a true and correct statement of such
individual's office on the date hereof (to which such individual has been
duly elected or appointed), a genuine specimen signature of such individual
and an address for the giving of notice to such Authorized Representative,
and (ii) each such individual has been duly authorized by the Borrowers to
act as an Authorized Representative under the Loan Documents:
Name and Address Office Specimen Signature
_________________ ___________________
_________________
_________________
_________________ ___________________ ]
_________________
_________________
[The Borrowers hereby revoke (effective upon the date specified below) the
prior appointment of ________________ as an Authorized Representative.]
This the ___ day of __________________, 19__.
CONSOLTEX GROUP INC.
By:
Name:
Title:
CONSOLTEX INC.
By:
Name:
Title:
CONSOLTEX (USA) INC.
By:
Name:
Title:
THE BALSON-HERCULES GROUP LTD.
By:
Name:
Title:
LINQ INDUSTRIAL FABRICS, INC.
By:
Name:
Title:
CONSOLTEX MEXICO, S.A. de C.V.
By:
Name:
Title:
D-1
EXHIBIT D
Form of Borrowing Base Certificate
To: National Bank of Canada
Sun Life Building
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
Bank of America, N.A.
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Reference is made to the Amended and Restated Credit Agreement dated
as of October 25, 1999, (the "Agreement") among CONSOLTEX GROUP INC.,
CONSOLTEX INC. ("Consoltex"), CONSOLTEX (USA) INC., THE BALSON-HERCULES
GROUP LTD., LINQ INDUSTRIAL FABRICS, INC. and CONSOLTEX MEXICO, S.A. de
C.V. (the "Borrowers"), the Lenders (as defined in the Agreement), and each
of National Bank of Canada and Bank of America, National Association, as
Agents for the Lenders (the "Agents"). Unless otherwise defined herein,
terms defined in the Agreement are used herein with the same meanings.
Consoltex, through the undersigned Authorized Representative, hereby
certifies to the Agents and the Lenders as follows:
(A) Eligible Receivables (as detailed in the
attached schedule) as of the last Business
Day of the immediately preceding month: US $_______
(B) Line (A) x 80% = US $_______
(C) Aggregate stated amount of all US $_______
commercial letters of credit issued
for the purchase by a Borrower of
raw materials which have not been
received as Inventory
(D) Line (C) x 50% = US $_______
(E) Eligible Inventory (as detailed in the
attached schedule) as of the last
Business Day of the immediately
preceding month US $_______
(F) Line (E) x 50% US $_______
(G) The lesser of $30,000,000 and Line (F): US $_______
(H) Cash in Cash Collateral Accounts
constituting Prepayment Cash Collateral US $_______
(I) Borrowing Base: Line (B) plus Line
(D) plus Line (G)
plus Line (H) US $_______
(J) The sum of all
Outstandings under the
Canadian Revolving Credit Facility US $_______
Outstandings under the
Canadian Swing Line Facility US $_______
Outstandings under the
Canadian Letter of Credit Facility US $_______
Outstandings under the
US Revolving Credit Facility US $_______
Outstandings under the
US Letter of Credit Facility US $_______
Total US $_______
NOTE: LINE (I) MUST BE GREATER THAN LINE (J) OR THE BORROWERS SHALL
HEREBY TENDER TO THE AGENTS WITH THIS CERTIFICATE THE AMOUNT BY WHICH LINE
(J) EXCEEDS LINE (I) AS A PREPAYMENT OF [CANADIAN] [US] REVOLVING CREDIT
LOANS.
CONSOLTEX GROUP INC.
By:
Authorized Representative
DATE:
E-1
EXHIBIT E
Form of Drawdown Notice
To: National Bank of Canada
Sun Life Building
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
Bank of America, N.A.
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Reference is made to the Amended and Restated Credit Agreement dated
as of October 25, 1999 (the "Agreement") among CONSOLTEX GROUP INC.,
CONSOLTEX INC. ("Consoltex"), CONSOLTEX (USA) INC., THE BALSON-HERCULES
GROUP LTD., LINQ INDUSTRIAL FABRICS, INC. and CONSOLTEX MEXICO, S.A. de
C.V. (the "Borrowers"), the Lenders (as defined in the Agreement), and each
of National Bank of Canada and Bank of America, National Association, as
Agents for the Lenders (the "Agents"). Unless otherwise defined herein,
terms defined in the Agreement are used herein with the same meanings.
______________________, a Facility Borrower under the [Canadian] [US]
Facility indicated below (the "Borrower"), through an Authorized
Representative, hereby gives notice to the [Canadian] [US] Agent that Loans
of the type and amount set forth below be made on the date indicated:
[Canadian] [US]
Revolving
Credit Facility Interest Aggregate
(CHECK ONE) PERIOD{(1)} AMOUNT{(2)} DATE OF LOAN{(3)
}TYPE OF LOAN
Base Rate Loan
Canadian Dollar _________ CAN $______ ______________
Base Rate Loan
US Dollar _________ US $_______ ______________
Eurodollar Rate
Loan _________ US $_______ ______________
Bankers'
Acceptances _________ CAN $______ ______________
____________________________________
(1) For any Eurodollar Rate Loan, one, two, three or six months.
(2) Must be US $100,000 (under either Revolving Credit Facility) (CAN
$500,000 per Lender if Bankers' Acceptances) or if greater an integral
multiple of US $100,000 (or CAN $100,000 in the case of Bankers'
Acceptances) unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan, or
two (2) Business Days later if Bankers' Acceptances.
The Borrower hereby requests that the proceeds of Loans described in
this Drawdown Notice be made available to the Borrower as follows:
__________________________________.
The undersigned hereby certifies that:
. No Default or Event of Default has occurred and is continuing or
shall result from the Loans described herein; and
. All the representations and warranties set forth in ARTICLE IX of
the Agreement and in the other Loan Documents (other than those expressly
stated to refer to a particular date) are correct in all material respects
as of the date hereof except that (i) the reference to the financial
statements in SECTION 9.5(A) of the Agreement are to those financial
statements most recently delivered to you pursuant to SECTION 10.1(A)(I) OR
10.1(B)(I) of the Agreement (it being understood that any financial
statements delivered pursuant to SECTION 10.1(B) have not been certified by
independent public accountants) and are subject to normal year-end
adjustments and (ii) SECTIONS 9.4, 9.17 AND 9.12 shall refer to Schedules
most recently updated and delivered together with the financial statements
referred to in SECTION 10.1(A) and that SECTIONS 9.7, 9.9 AND 9.15 shall
refer to schedules most recently updated delivered together with the
financial statements referred to in SECTION 10.1(B).
. After giving effect to the requested Loan, Outstandings under any
Facility shall not exceed the applicable Maximum Permitted Principal
Amounts or, in the case of either US Facility, the Consoltex Mexico
Borrowing Limit.
[NAME OF BORROWER]
BY:
Authorized Representative
DATE:
F-1
EXHIBIT F
Form of Selection Notice
To: National Bank of Canada
Sun Life Building
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
Bank of America, N.A.
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Reference is made to the Amended and Restated Credit Agreement dated
as of October 25, 1999, as amended (the "Agreement") among CONSOLTEX GROUP
INC., CONSOLTEX INC., CONSOLTEX (USA) INC., THE BALSON-HERCULES GROUP LTD.,
LINQ INDUSTRIAL FABRICS, INC. and CONSOLTEX MEXICO, S.A. de C.V., the
Lenders (as defined in the Agreement), and each of National Bank of Canada
and Bank of America, N.A., as Agents for the Lenders (the "Agents").
Unless otherwise defined herein, terms defined in the Agreement are used
herein with the same meanings.
__________________, a Facility Borrower under the [CANADIAN] [US]
[TERM B LOAN] Facility indicated below (the "Borrower"), through an
Authorized Representative hereby gives notice to the [CANADIAN] [US] Agent
of the following selection of a type of Loan or Segment and Interest
Period:
[CANADIAN/US]
Revolving
Credit Facility Interest Aggregate
(CHECK ONE) PERIOD{(1)} AMOUNT{(2)} DATE OF LOAN{(3)}
TYPE OF LOAN
1. Base Rate Loan
Canadian Dollar ______ CAN $_______ ____________
2. Base Rate Loan
US Dollar ______ US $_______ ____________
3. Eurodollar Rate
Loan ______ US $_______ ____________
4. Bankers'
Acceptances ______ CAN $_______ ____________
[CANADIAN/US]
Term Loan Interest Aggregate
(CHECK ONE) PERIOD{(1)} AMOUNT{(2)} DATE OF LOAN{(3)}
TYPE OF LOAN
5. Base Rate Loan
Canadian Dollar ______ CAN $_______ ____________
6. Base Rate Loan
US Dollar ______ US $_______ ____________
7. Eurodollar Rate
Loan ______ US $_______ ____________
8. Bankers'
Acceptances ______ CAN $_______ ____________
Term B Loan Interest Aggregate
(CHECK ONE) PERIOD{(1)} AMOUNT{(2)} DATE OF LOAN{(3)}
TYPE OF LOAN
9. Base Rate Loan
US Dollar ______ US $_______ ____________
10. Eurodollar Rate
Loan ______ US $_______ ____________
Conversion (Canadian Revolving Credit Facility)
Segment no 1, 2, 3, 4 above (check one) to be a conversion of:
Interest period
MATURITY DATE AMOUNT
Base Rate Loan
Canadian Dollar N/A CAN $__________
Base Rate Loan
US Dollar N/A US $__________
Eurodollar Rate
Loan _______ US $__________
Bankers'
Acceptances _______ CAN $__________
Conversion (Canadian Term Loan Facility)
Segment no 5, 6, 7, 8 above (check one) to be a conversion of:
Interest period
MATURITY DATE AMOUNT
Base Rate Loan
Canadian Dollar N/A CAN $__________
Base Rate Loan
US Dollar N/A US $__________
Eurodollar Rate
Loan _______ US $__________
Bankers'
Acceptances _______ CAN $__________
Conversion (US Revolving Credit Facility)
Segment no 2 or 3 above (check one) to be a conversion of:
Interest period
MATURITY DATE AMOUNT
Base Rate Loan
US Dollar N/A US $__________
Eurodollar Rate
Loan _______ US $__________
Conversion (US Term Loan Facility)
Segment no 6 or 7 above (check one) to be a conversion of:
Interest period
MATURITY DATE AMOUNT
Base Rate Loan
US Dollar N/A US $__________
Eurodollar Rate
Loan _______ US $__________
Conversion (US Term Loan Facility)
Segment no 9 or 10 above (check one) to be a conversion of:
Interest period
MATURITY DATE AMOUNT
Base Rate Loan
US Dollar N/A US $__________
Eurodollar Rate
Loan _______ US $__________
____________________________
(1) For any Eurodollar Rate Loan or Segment, one, two, three or six
months; for Bankers' Acceptances from 30 to 364 days.
(2) Must be US $500,000 (CAN $500,000 per Lender if Bankers' Acceptances)
or if greater an integral multiple of US $100,000 (CAN $100,000 in the
case of Bankers' Acceptances), unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan or
Eurodollar Rate Segment, or two (2) Business Days later if Bankers'
Acceptances.
[NAME OF BORROWER]
BY:
Authorized Representative
DATE:
G-1
EXHIBIT G-1
Form of US Revolving Credit Note
Promissory Note
(US Revolving Credit Facility)
US $______________ ,
FOR VALUE RECEIVED, each of CONSOLTEX (USA) INC., THE BALSON-HERCULES
GROUP LTD., LINQ INDUSTRIAL FABRICS, INC. and CONSOLTEX MEXICO S.A. de C.V.
(the "Borrowers"), hereby promise to pay to the order of
_______________________________________________ (the "Lender"), in its
individual capacity, at the office of BANK OF AMERICA, N.A., as agent for
the US Revolving Credit Facility Lenders (the "US Agent"), located at One
Independence Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other place or places as the US Agent may
designate in writing) at the times set forth in the Amended and Restated
Credit Agreement dated as of October 25, 1999 among Consoltex Group Inc.,
Consoltex Inc. and the Borrowers, the financial institutions party thereto
(collectively, the "Lenders") and each of the US Agent and National Bank of
Canada, as the Canadian Agent (the "Agreement"; all capitalized terms not
otherwise defined herein shall have the respective meanings set forth in
the Agreement), in lawful money of the United States of America, in
immediately available funds, the principal amount of ___________ DOLLARS
(US $__________) or, if less than such principal amount, the aggregate
unpaid principal amount of all US Revolving Credit Loans made by the Lender
to the Borrowers pursuant to the Agreement and outstanding on the Revolving
Credit Termination Date, and to pay interest from the date hereof on the
unpaid principal amount hereof, in like money, at said office, on the dates
and at the rates provided in ARTICLES III AND IV of the Agreement. All or
any portion of the principal amount of Loans may be prepaid as provided in
the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and
accrued but unpaid interest shall bear interest which shall be payable on
demand at the rates per annum set forth in SECTION 5.9(C) of the Agreement.
Further, in the event of such acceleration, this Note shall become
immediately due and payable, without presentation, demand, protest or
notice of any kind, all of which are hereby waived by the Borrowers.
In the event this Note is not paid when due at any stated or
accelerated maturity, each Borrower agrees to pay, in addition to the
principal and interest due hereunder, all costs of collection, including
reasonable attorneys' fees, on the terms set forth in SECTION 14.5 of the
Agreement.
Interest hereunder shall be computed as provided in SECTION 5.9(B) of
the Agreement.
This Note is one of the Notes relating to the US Revolving Credit Facility
referred to in the Agreement and is issued pursuant to, and entitled to the
benefits and security provided for under, the Agreement to which reference
is hereby made for a more complete statement of the terms and conditions
upon which the US Revolving Credit Loans evidenced hereby were or are made
and are to be repaid. This US Revolving Credit Note is subject to certain
restrictions on transfer or assignment as provided in the Agreement.
Each Borrower hereby waives to the full extent permitted by law the
benefits of all provisions of law for stay or delay of execution or sale of
property or other satisfaction of judgment against any Borrower on account
of liability hereon until judgment be obtained and execution issues against
any other Borrower and returned satisfied or until it can be shown that no
other Borrower had any property available for the satisfaction of the debt
evidenced by this instrument, or until any other proceedings can be had
against any Borrower. Protest, notice of protest, notice of dishonor,
diligence or any other formality are hereby waived by all parties bound
hereon.
This Note shall be governed by, and construed in accordance with, the
laws of the State of New York.
IN WITNESS WHEREOF, the Borrowers have caused this Note to be made,
executed and delivered by its duly authorized representative as of the date
and year first above written, all pursuant to authority duly granted.
CONSOLTEX (USA) INC.
By:
Name:
Title:
THE BALSON-HERCULES GROUP LTD.
By:
Name:
Title:
LINQ INDUSTRIAL FABRICS, INC.
By:
Name:
Title:
CONSOLTEX MEXICO S.A. de C.V.
By:
Name:
Title:
EXHIBIT G-2
Form of US Term Note
Promissory Note
(US Term Loan Facility)
US $________________ ,
,
FOR VALUE RECEIVED, EACH OF LINQ INDUSTRIAL FABRICS, INC. and
CONSOLTEX MEXICO, S.A. de C.V. (the "Borrowers"), hereby promise to pay to
the order of _________________________________ (the "Lender"), in its
individual capacity, at the office of BANK OF AMERICA, N.A., as agent for
the US Term Loan Facility Lenders (the "US Agent"), located at One
Independence Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other place or places as the US Agent may
designate in writing) on each of the principal repayment installment dates
set forth in SECTION 2.3 of, and on the Term Loan Termination Date referred
to in, the Amended and Restated Credit Agreement dated as of October 25,
1999 among Consoltex Group Inc., Consoltex Inc., Consoltex (USA) Inc., The
Balson-Hercules Group Ltd. and the Borrowers, the financial institutions
party thereto (collectively, the "Lenders") and each of the Agent and
National Bank of Canada, as the Canadian Agent (the "Agreement"; all
capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Agreement), in lawful money of the United States
of America, in immediately available funds, the principal amount of
_____________________ DOLLARS (US $______________) on the Term Loan
Termination Date, and to pay interest from the date hereof on the unpaid
principal amount hereof, in like money, at said office, on the dates and at
the rates provided in ARTICLES II AND V of the Agreement. All or any
portion of the principal amount of Loans may be prepaid as provided in the
Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount hereof
and accrued but unpaid interest thereon shall bear interest which shall be
payable on demand at the rates per annum set forth in SECTION 5.9(C) of the
Agreement. Further, in the event of such acceleration, this Note shall
become immediately due and payable, without presentation, demand, protest
or notice of any kind, all of which are hereby waived by the Borrowers.
In the event this Note is not paid when due at any stated or
accelerated maturity, each Borrower agrees to pay, in addition to the
principal and interest due hereunder, all costs of collection, including
reasonable attorneys' fees, on the terms set forth in SECTION 14.5 of the
Agreement.
Interest hereunder shall be computed as provided in SECTION 5.9(B) of
the Agreement.
This Note is one of the Notes relating to the US Term Loan Facility
referred to in the Agreement and is issued pursuant to and entitled to the
benefits and security of the Agreement to which reference is hereby made
for a more complete statement of the terms and conditions upon which the US
Term Loan evidenced hereby was made and is to be repaid. This US Term Note
is subject to certain restrictions on transfer or assignment as provided in
the Agreement.
Each Borrower hereby waives to the full extent permitted by law the
benefits of all provisions of law for stay or delay of execution or sale of
property or other satisfaction of judgment against any Borrower on account
of liability hereon until judgment be obtained and execution issues against
any other Borrower and returned satisfied or until it can be shown that no
other Borrower had any property available for the satisfaction of the debt
evidenced by this instrument, or until any other proceedings can be had
against any Borrower. Protest, notice of protest, notice of dishonor,
diligence or any other formality are hereby waived by all parties bound
hereon.
This Note shall be governed by, and construed in accordance with, the
laws of the State of New York.
IN WITNESS WHEREOF, the Borrowers have caused this US Term Note to be made,
executed and delivered by its duly authorized representative as of the date
and year first above written, all pursuant to authority duly granted.
LINQ INDUSTRIAL FABRICS, INC.
By:
Name:
Title:
CONSOLTEX MEXICO, S.A. de C.V.
By:
Name:
Title:
EXHIBIT G-3
Form of Term B Note
Promissory Note
(Term B Loan Facility)
US $43,000,000 _______________, 1999
FOR VALUE RECEIVED, CONSOLTEX (USA), INC. (the "Borrower"), hereby
promises to pay to the order of _________________________________ (the
"Lender"), in its individual capacity, at the office of BANK OF AMERICA,
N.A. as agent for the Term B Loan Facility Lenders (the "US Agent"),
located at One Independence Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other place or places as the US
Agent may designate in writing) on the Term B Loan Termination Date
referred to in, the Amended and Restated Credit Agreement dated as of
October 25, 1999 among Consoltex Group Inc., Consoltex Inc., Consoltex
Mexico S.A. de C.V., Consoltex (USA) Inc., The Balson-Hercules Group Ltd.
and LINQ Industrial Fabrics, Inc., the financial institutions party thereto
(collectively, the "Lenders") and each of the Agent and National Bank of
Canada, as the Canadian Agent (as from time to time amended, supplemented
or replaced, the "Agreement"; all capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Agreement), in
lawful money of the United States of America, in immediately available
funds, the principal amount of FORTY-THREE MILLION DOLLARS (US
$43,000,000.00) on the Term B Loan Termination Date, and to pay interest
from the date hereof on the unpaid principal amount hereof, in like money,
at said office, on the dates and at the rates provided in ARTICLES IIA AND
V of the Agreement. All or any portion of the principal amount of Term B
Loan may be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount hereof
and accrued but unpaid interest thereon shall bear interest which shall be
payable on demand at the rates per annum set forth in SECTION 5.9(C) of the
Agreement. Further, in the event of such acceleration, this Note shall
become immediately due and payable, without presentation, demand, protest
or notice of any kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the
principal and interest due hereunder, all costs of collection, including
reasonable attorneys' fees, on the terms set forth in SECTION 14.5 of the
Agreement.
Interest hereunder shall be computed as provided in SECTIONS 2A.7 and
5.9(B) of the Agreement.
This Note is one of the Notes relating to the Term B Loan Facility referred
to in the Agreement and is issued pursuant to and entitled to the benefits
and security of the Agreement to which reference is hereby made for a more
complete statement of the terms and conditions upon which the Term B Loan
evidenced hereby was made and is to be repaid. This Note is subject to
certain restrictions on transfer or assignment as provided in the
Agreement.
The Borrower hereby waives to the full extent permitted by law the
benefits of all provisions of law for stay or delay of execution or sale of
property or other satisfaction of judgment against the Borrower on account
of liability hereon. Protest, notice of protest, notice of dishonor,
diligence or any other formality are hereby waived by all parties bound
hereon.
This Note shall be governed by, and construed in accordance with, the
laws of the State of New York.
IN WITNESS WHEREOF, the Borrower has caused this Note to be made,
executed and delivered by its duly authorized representative as of the date
and year first above written, all pursuant to authority duly granted.
CONSOLTEX (USA), INC.
By:
Name:
Title:
By:
Name:
Title:
H-1
EXHIBIT H
Form of Opinion of Borrowers' Counsel
I-1
EXHIBIT I
Form of Compliance Certificate
J-1
EXHIBIT J
Form of Second Amendment to Mortgage
SCHEDULE 11.4(G)
Liens, each securing Indebtedness permitted under SECTION 11.5(P), on (i)
the receivables arising from sales to customers in the United States
pursuant to factoring agreements with each of (w) SunTrust Bank, Atlanta
(formerly Trust Company Bank), (x) BNY Financial Corporation (as successor
in interest by assignment to Midlantic Commercial Co., a division of
Midlantic Bank, N.A.), (y) NationsBanc Commercial Corporation (formerly
Citizens and Southern Commercial Corporation) and (z) The CIT
Group/Commercial Servicers, Inc. (collectively, the "Factors"), as such
factoring agreements may be amended from time to time, (ii) all goods or
merchandise represented by such receivables which are returned by or
repossessed, recovered or reclaimed from customers of Consoltex Inc. or
others; (iii) all proceeds derived directly or indirectly from any dealings
with any or the whole of the foregoing and (iv) all moneys owed by the
Factors to Consoltex Inc.