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EXHIBIT 10.2
This SECOND TEMPORARY AND LIMITED WAIVER AND AGREEMENT dated as
of
July 8, 2005 (this "Waiver"), is entered
into between COLLINS & AIKMAN
AUTOMOTIVE HERMOSILLO, S.A. DE C.V., a
Mexican sociedad anonima de capital
variable (the "Construction Agent" or the
"Company") and GE CAPITAL DE MEXICO,
S. DE R.L. DE C.V., a Mexican sociedad de
responsabilidad limitada de capital
variable (the "Owner") and relates to that
certain Construction Agency
Agreement, dated as of November 8, 2004 (as
the same may be amended, restated,
supplemented or otherwise modified from
time to time, the "Agreement"), between
the Company and the Owner. Capitalized
terms used and not otherwise defined
herein have the respective meanings
assigned to them in the Agreement or
Appendix A thereto.
W I T N E S S E T H:
WHEREAS,
the Company has requested and the Owner agrees to waive certain
provisions of the Agreement and refrain
from taking certain actions for a
limited period of time as set forth
herein;
WHEREAS,
the Owner is willing to so waive such provisions of the
Agreement
but only for a limited period of time
pursuant to the terms and subject to the
conditions set forth herein;
WHEREAS,
Collins, the maker of the Guaranty has filed for relief
pursuant
to Title 11 of the United States Bankruptcy
Code (the "Filing");
NOW,
THEREFORE, in consideration of the premises and the mutual
agreements
herein contained, the Company and the Owner
agree as follows:
SECTION 1. Waivers by the Owner; Next Advance
(a) The Owner hereby temporarily and solely on the limited basis
set
forth herein waives the rights it may have
to take action or exercise remedies
as a result of the defaults under the
provisions described in Exhibit A hereto
(the "Waived Events") until the earliest
of: (x) the occurrence of a
Construction Agency Event of Default that
is not a Waived Event or (y) July 15,
2005 (the period commencing on the date
this Waiver becomes effective and ending
on the earliest of the dates referred to in
clauses (x) and (y) of this Section
being referred to herein as the "Covered
Period").
(b) Notwithstanding the occurrence and existence of the Waived
Events, on or before July 8, 2005, Owner
shall make an Advance in an amount up
to $1,315,764.03, less a Waiver Fee in the
amount of $50,000 plus applicable
taxes which the Construction Agent agrees
may be deducted from the Advance, on
the terms and subject to the conditions
(not waived hereby) as provided in the
Agreement.
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(c) The Owner agrees that during the Covered Period, but only
during
such period, a Waived Event (i) shall not
constitute a Construction Agency Event
of Default and (ii) shall not constitute
the basis for the declaration of any
Construction Agency Event of Default.
(d) The waivers and agreements provided for by paragraphs (a),
(b)
and (c) above shall terminate and expire
automatically and without notice or
other action of any kind whatsoever at
11:59 p.m., New York City time, on the
final day of the Covered Period, and at all
times thereafter the Agreement shall
apply in all respects, and the Owner shall
have all such rights and remedies, as
if this Waiver had never been granted (and
shall not for the purpose of the
occurrence of any Construction Agency Event
of Default be required to provide
notice of and an opportunity to cure any
Waived Event).
SECTION 2. Representations and Warranties. The Company hereby
represents and warrants to the Owner that,
as of the date hereof and after
giving effect to this Waiver:
(a) The execution, delivery and performance by the Company of
this
Waiver (i) are within the Company's
corporate power and (ii) have been duly
authorized by all necessary or proper
corporate and shareholder action.
(b) When duly executed and delivered by the Company, each of
this
Waiver and the Agreement shall constitute a
legal, valid and binding obligation
of the Company enforceable against it in
accordance with its terms, subject to
applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance,
moratorium or other similar laws affecting
the rights of creditors generally and
general equitable principles (whether
considered in a proceeding at law or in
equity).
(c) The execution, delivery and performance by the Company of
this
Waiver will not contravene any provision of
applicable law, rule or regulation
or of the articles of incorporation or
bylaws of the Company or constitute a
default under any agreement or any
judgment, injunction, order, writ, decree or
other instrument binding upon the Company
or result in the creation or
imposition of any adverse Claim on the
assets of the Company (except as
contemplated by the Agreement).
(d) The execution, delivery and performance by the Company of
this
Waiver does not require any action by or in
respect of, or filing with, any
Governmental Authority or official thereof,
other than has been obtained or made
and other than as will be made on a Form
8-
