Exhibit 10.17
[Execution]
AMENDMENT NO. 1 TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 1 TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT dated
as of November 5, 2004 by and among ▇▇▇▇▇▇ International, Inc., a Delaware
corporation ("▇▇▇▇▇▇ Parent"), ▇▇▇▇▇▇ Wire Company, a Delaware corporation
("▇▇▇▇▇▇ Wire" and together with ▇▇▇▇▇▇ Parent, each individually, a "Borrower"
and collectively, "Borrowers"), the parties from time to time to the Loan
Agreement (as hereinafter defined) as lenders (each individually, a "Lender" and
collectively, "Lenders") and Congress Financial Corporation (Central), an
Illinois corporation, in its capacity as agent for Lenders pursuant to the Loan
Agreement (in such capacity, "Agent").
W I T N E S S E T H
WHEREAS, ▇▇▇▇▇▇ Parent has entered into financing arrangements with Agent
and Lenders pursuant to which Lenders (or Agent on behalf of Lenders) have made
and may make loans and advances and provide other financial accommodations to
▇▇▇▇▇▇ Parent as set forth in, and subject to the terms and conditions of, the
Amended and Restated Loan and Security Agreement, dated August 31, 2004, by and
among Agent, Lenders, Bank One, NA, in its capacity as documentation agent for
Lenders, and ▇▇▇▇▇▇ Parent ( as amended and supplemented hereby and as the same
may hereafter be further amended, modified, supplemented, extended, renewed,
restated or replaced, the "Loan Agreement") and the other Financing Agreements
(as defined therein); and
WHEREAS, ▇▇▇▇▇▇ Parent has formed ▇▇▇▇▇▇ Wire, which is a wholly-owned
subsidiary of ▇▇▇▇▇▇ Parent; and
WHEREAS, ▇▇▇▇▇▇ Parent and ▇▇▇▇▇▇ Wire have requested that Agent and
Lenders consent to the acquisition by ▇▇▇▇▇▇ Wire of certain assets of the
Sellers (as hereinafter defined) pursuant to the Branford Purchase Documents (as
hereinafter defined) and enter into certain amendments to the Financing
Agreements in connection therewith; and
WHEREAS, ▇▇▇▇▇▇ Parent and ▇▇▇▇▇▇ Wire have requested that Agent and
Lenders provide certain consents and agree to certain amendments to the Loan
Agreement in connection with the formation of ▇▇▇▇▇▇ Wire, the addition of
▇▇▇▇▇▇ Wire as an additional party to the Loan Agreement as a Borrower and
certain of the other Financing Agreements and certain related matters, and Agent
and Lenders are willing to provide such consents and agree to such amendments,
subject to the terms and conditions herein; and
WHEREAS, by this Amendment No. 1, ▇▇▇▇▇▇ Parent, ▇▇▇▇▇▇ Wire, Agent and
Lenders desire and intend to evidence such consents and amendments;
NOW, THEREFORE, in consideration of the foregoing, the mutual conditions
and agreements and covenants set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. DEFINITIONS.
1.1 DEFINED TERMS. For purposes of this Amendment No. 1, unless
otherwise defined herein, all capitalized terms used herein shall have the
meanings assigned thereto in the Loan Agreement.
1.2 ADDITIONAL DEFINITIONS. As used herein, the following terms shall
have the meanings given to them below, and the Loan Agreement is hereby amended
to include the following definitions:
(a) "Amendment No. 1" shall mean Amendment No. 1 to Amended and
Restated Loan and Security Agreement by and among ▇▇▇▇▇▇ Parent, ▇▇▇▇▇▇ Wire,
Agent and Lenders, as it now exists or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced.
(b) "Branford Purchase Agreement" shall mean the Asset Purchase
Agreement, dated as of October 28, 2004, by and among ▇▇▇▇▇▇ Wire, Sellers and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as the same now exists or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced.
(c) "Branford Purchased Assets" shall mean, collectively, the
"Acquired Assets", as such term is defined in the Branford Purchase Agreement as
in effect on the date hereof.
(d) "Branford Purchase Documents" shall mean, collectively, the
following (as the same now exist or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced): (i) the Branford
Purchase Agreement, (ii) all bills of sale, deeds, and such instruments of
transfer as are referred to therein, and (iii) all side letters with respect
thereto and all other agreements, documents and instruments executed and/or
delivered by Sellers, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or Borrowers in connection therewith;
PROVIDED, THAT, the term "Branford Purchase Documents" shall not include this
Amendment No. 1 or any of the other Financing Agreements.
(e) "▇▇▇▇▇▇ Parent" shall mean ▇▇▇▇▇▇ International, Inc., a
Delaware corporation, and its successors and assigns.
(f) "▇▇▇▇▇▇ Parent Borrowing Base" shall mean, at any time, the
amount equal to:
(i) eighty-five (85%) percent of the Eligible Accounts of
▇▇▇▇▇▇ Parent, plus
(ii) the lesser of: (A) the sum of (1) the Kokomo Facility
Inventory Availability, plus (2) the Arcadia Facility Inventory Availability,
plus (3) the Service Center Inventory Availability or (B) the Inventory Loan
Limit applicable to ▇▇▇▇▇▇ Parent, plus
(iii) ▇▇▇▇▇▇ Parent Fixed Asset Availability, less
(iv) Reserves attributable to ▇▇▇▇▇▇ Parent.
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For purposes only of applying the Inventory Loan Limit as to ▇▇▇▇▇▇ Parent,
Agent may treat the then undrawn amounts of outstanding Letter of Credit
Accommodations issued for the purpose of purchasing Eligible Inventory of ▇▇▇▇▇▇
Parent as Loans to ▇▇▇▇▇▇ Parent to the extent Agent is in effect basing the
issuance of the Letter of Credit Accommodations on the Value of the Eligible
Inventory of ▇▇▇▇▇▇ Parent being purchased with such Letter of Credit
Accommodations. In determining the actual amounts of such Letter of Credit
Accommodations to be so treated for purposes of the sublimit, the outstanding
Loans and Reserves shall be attributed first to any components of the lending
formulas set forth above that are not subject to such sublimit, before being
attributed to the components of the lending formulas subject to such sublimit.
The amounts of Eligible Inventory of ▇▇▇▇▇▇ Parent shall, at Agent's option, be
determined based on the lesser of the amount of Inventory set forth in the
general ledger of ▇▇▇▇▇▇ Parent or the perpetual inventory record maintained by
▇▇▇▇▇▇ Parent.
(g) "▇▇▇▇▇▇ Parent Excess Availability" shall mean at any time and
without duplication, the sum of:
(i) the amount calculated at such time equal to: (A) the
lesser of: (1) the ▇▇▇▇▇▇ Parent Borrowing Base and (2) the Maximum Credit minus
the then outstanding Loans to ▇▇▇▇▇▇ Wire (in each case under (1) or (2) after
giving effect to any applicable Reserves), minus (B) the sum of: (1) the amount
of the then outstanding and unpaid principal amount of the Loans to ▇▇▇▇▇▇
Parent (other than Equipment Purchase Loans) and the undrawn amount of Letter of
Credit Accommodations issued on behalf or for the benefit of ▇▇▇▇▇▇ Parent, plus
(2) the aggregate amount of all payables or other obligations of ▇▇▇▇▇▇ Parent
outstanding more than forty-five (45) days after the due date therefor as of
such time (and for this purpose the due date for payables incurred prior to the
commencement of the Chapter 11 Case (or during the course thereof) will be the
date for payment of such payables as established pursuant to the Plan and the
claims administration process provided for in the Chapter 11 Case and as to
those payables or other obligations that are subject to a dispute or are not
otherwise allowed, prior to the establishment of the due date for such payables
or other obligations pursuant to the Plan and the claims administration process,
such payables and other obligations shall not be deemed outstanding more than
forty-five (45) days after the due date therefor for purposes of this
definition), plus (3) the amount of checks issued by ▇▇▇▇▇▇ Parent to pay
payables and other obligations which are more than such number of days past due,
but not yet sent (without duplication of amounts included in clause (i)(B)(2)
herein); plus
(ii) the amount calculated at such time equal to the total
amount available for Utilisation (as such term is defined in the UK Financing
Agreements), subject to the limitations contained in Sections 5.3 and 5.5 of the
Facility Agreement referred to in the definition of the UK Financing Agreements,
after giving effect to all then outstanding Utilisations and net of the
aggregate of all Past Due Payables (as such term is defined in the UK Financing
Agreements).
(h) "▇▇▇▇▇▇ Parent Fixed Asset Availability" shall mean $15,949,276;
PROVIDED, THAT, effective on the first day of each month after the date hereof
the ▇▇▇▇▇▇ Parent Fixed Asset Availability shall be reduced by the amount equal
to $231,681 on the first day of each such month.
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(i) "▇▇▇▇▇▇ Wire" shall mean ▇▇▇▇▇▇ Wire Company, a Delaware
corporation, and its successors and assigns.
(j) "▇▇▇▇▇▇ Wire Borrowing Base" shall mean, at any time, the amount
equal to:
(i) eighty-five (85%) percent of the Eligible Accounts of
▇▇▇▇▇▇ Wire, plus
(ii) the lesser of: (A) sixty (60%) percent multiplied by
the Value of the Eligible Inventory of ▇▇▇▇▇▇ Wire, (B) eighty-five (85%)
percent of the Net Recovery Percentage of Eligible Inventory of ▇▇▇▇▇▇ Wire or
(C)the Inventory Loan Limit applicable to ▇▇▇▇▇▇ Wire, plus
(iii) the ▇▇▇▇▇▇ Wire Fixed Asset Availability, less
(iv) Reserves attributable to ▇▇▇▇▇▇ Wire.
For purposes only of applying the Inventory Loan Limit as to ▇▇▇▇▇▇ Wire, Agent
may treat the then undrawn amounts of outstanding Letter of Credit
Accommodations issued for the purpose of purchasing Eligible Inventory of ▇▇▇▇▇▇
Wire as Loans to ▇▇▇▇▇▇ Wire to the extent Agent is in effect basing the
issuance of the Letter of Credit Accommodations on the Value of the Eligible
Inventory of ▇▇▇▇▇▇ Wire being purchased with such Letter of Credit
Accommodations. In determining the actual amounts of such Letter of Credit
Accommodations to be so treated for purposes of the sublimit, the outstanding
Loans and Reserves shall be attributed first to any components of the lending
formulas set forth above that are not subject to such sublimit, before being
attributed to the components of the lending formulas subject to such sublimit.
The amounts of Eligible Inventory of ▇▇▇▇▇▇ Wire shall, at Agent's option, be
determined based on the lesser of the amount of Inventory set forth in the
general ledger of ▇▇▇▇▇▇ Wire or the perpetual inventory record maintained by
▇▇▇▇▇▇ Wire.
(k) "▇▇▇▇▇▇ Wire Excess Availability" shall mean at any time and
without duplication, the amount calculated at such time equal to:
(i) the lesser of: (A) the ▇▇▇▇▇▇ Wire Borrowing Base and
(B) the amount equal to the Maximum Credit minus the then outstanding Loans to
▇▇▇▇▇▇ Parent (in each case under (A) or (B) after giving effect to any
applicable Reserves), minus
(ii) the sum of: (A) the amount of the then outstanding and
unpaid principal amount of the Loans to ▇▇▇▇▇▇ Wire (other than Equipment
Purchase Loans) and the undrawn amount of Letter of Credit Accommodations issued
on behalf or for the benefit of ▇▇▇▇▇▇ Wire, plus (B) the aggregate amount of
all payables or other obligations of ▇▇▇▇▇▇ Wire outstanding more than
forty-five (45) days after the due date therefor as of such time, plus (C) the
amount of checks issued by ▇▇▇▇▇▇ Wire to pay payables and other obligations
which are more than such number of days past due, but not yet sent (without
duplication of amounts included in clause (i)(B)(2) herein).
(l) "▇▇▇▇▇▇ Wire Fixed Asset Availability" shall mean shall mean
$2,165,000; PROVIDED, THAT, effective on the first day of each month after
December 31, 2004 the ▇▇▇▇▇▇ Wire
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Fixed Asset Availability shall be reduced by the amount equal to $30,069 on the
first day of each such month.
(m) "Sellers" shall mean, collectively, the following (together with
their respective successors and assigns): (i) Branford Wire and Manufacturing
Company, a Connecticut corporation and (ii) Carolina Industries, Inc., a
Connecticut corporation; sometimes being referred to herein individually as a
"Seller".
1.3 AMENDMENTS TO DEFINITIONS. Each of the defined terms below shall be
deemed to be amended and restated in their entirety to have the meaning as to
such term set forth below.
(a) "Borrower" and "Borrowers" shall mean ▇▇▇▇▇▇ Parent and ▇▇▇▇▇▇
Wire, individually and collectively, and jointly and severally, except for
purposes of Sections 1.25, 1.33, 1.41, 1.43, 1.45, 1.65, 1.95(a), 1.112, 2.1(b),
8.16, 9.6(a) (but only to the extent of the financial statements referenced
therein), 9.17 and 9.18, where the references to Borrower shall mean only ▇▇▇▇▇▇
Parent.
(b) "Borrowing Base" shall mean, at any time, collectively, the
▇▇▇▇▇▇ Parent Borrowing Base and the ▇▇▇▇▇▇ Wire Borrowing Base at such time.
(c) "Collateral" shall mean, collectively, "Collateral" as defined
in Section 5 hereof and "Collateral" as described in Section 4 of
Amendment No. 1.
(d) "Financing Agreements" shall mean, collectively, this Agreement,
Amendment No. 1 and all notes, guarantees, security agreements, Deposit Account
Control Agreements, Investment Property Control Agreements, intercreditor
agreements and all other agreements, documents and instruments now or at any
time hereafter executed and/or delivered by Borrower in connection with this
Agreement.
(e) "Fixed Asset Availability" shall mean, at any time,
collectively, the ▇▇▇▇▇▇ Parent Fixed Asset Availability and the ▇▇▇▇▇▇ Wire
Fixed Asset Availability at such time.
(f) "Information Certificate" shall mean, collectively, the
Information Certificate of Parent constituting Exhibit C hereto and the
Information Certificate of ▇▇▇▇▇▇ Wire constituting Exhibit B to Amendment No.
1. each containing material information with respect to Borrower, its business
and assets provided by or on behalf of Borrower to Agent in connection with the
preparation of this Agreement and the other Financing Agreements and the
financing arrangements provided for herein.
(g) "Inventory Loan Limit" shall mean at any time, (i) as to ▇▇▇▇▇▇
Parent, the amount equal to (A) $70,000,000 minus (B) the sum of (1) the US
Dollar Equivalent of the then outstanding amount of loans to ▇▇▇▇▇▇ UK (and
including letter of credit accommodations to the extent provided in its
borrowing base as such term is defined in the UK Financing Agreements) based on
eligible inventory (as such term is defined in the UK Financing Agreements) of
▇▇▇▇▇▇ UK and (2) the then outstanding amount of Loans to ▇▇▇▇▇▇ Wire (and
including Letter of Credit Accommodations to the extent provided in ▇▇▇▇▇▇ Wire
Borrowing Base) based on Eligible Inventory of ▇▇▇▇▇▇ Wire and (ii) as to ▇▇▇▇▇▇
Wire, the amount equal to (A) $70,000,000 minus (B) the sum of (1) the US Dollar
Equivalent of the then outstanding amount of loans to
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▇▇▇▇▇▇ UK (and including letter of credit accommodations to the extent provided
in its borrowing base as such term is defined in the UK Financing Agreements )
based on eligible inventory (as such term is defined in the UK Financing
Agreements) of ▇▇▇▇▇▇ UK plus (2) the then outstanding amount of Loans to ▇▇▇▇▇▇
Parent (and including Letter of Credit Accommodations to the extent provided in
▇▇▇▇▇▇ Parent Borrowing Base) based on Eligible Inventory of ▇▇▇▇▇▇ Parent.
(h) "Maximum Credit" shall mean $110,000,000.
(i) "Mortgages" shall mean, individually and collectively, each of
the following (as the same now exist or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced): (a) the Mortgage,
Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated of
even date herewith, by ▇▇▇▇▇▇ Parent in favor of Agent with respect to the Real
Property and related assets of ▇▇▇▇▇▇ Parent located in Kokomo, Indiana, (b) the
Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing,
dated of even date herewith, by ▇▇▇▇▇▇ Parent in favor of Agent with respect to
the Real Property and related assets of ▇▇▇▇▇▇ Parent located in Arcadia,
Louisiana, and (c) the Deed of Trust, Assignment of Leases and Rents, Security
Agreement and Fixture Filing, dated the date of Amendment No. 1, by ▇▇▇▇▇▇ Wire
in favor of Agent with respect to the Real Property of ▇▇▇▇▇▇ Wire located in
Mountain Home, North Carolina.
(j) "Tranche A Commitment" shall mean, with respect to each Lender,
the principal amount set forth opposite such Lender's name on Schedule 1.134
hereto and designated "Tranche A Commitment" or on Schedule 1 to the Assignment
and Acceptance Agreement pursuant to which such Lender became a Lender hereunder
in accordance with the provisions of Section 13.7 hereof, as the same may be
adjusted in accordance with the terms hereof; sometimes being collectively
referred to as "Tranche A Commitments".
(k) "Tranche A Loan Limit" shall mean at any time the amount equal
to the lesser of: (i) $95,000,000 or (ii) the aggregate amount of the Borrowing
Base of Borrowers at such time.
(l) "Tranche B Borrowing Base" shall mean, as to each Borrower, the
amount equal to (i) such Borrower's Borrowing Base minus (ii) the Tranche A
Loans then outstanding to such Borrower.
Section 2. CONSENTS. Subject to the terms and conditions contained
herein, to the extent such consents are or may be required under the Loan
Agreement, Agent and Lenders hereby consent to:
2.1 the formation by ▇▇▇▇▇▇ Parent of ▇▇▇▇▇▇ Wire, as a wholly-owned
subsidiary of ▇▇▇▇▇▇ Parent, and the investments made by ▇▇▇▇▇▇ Parent in ▇▇▇▇▇▇
Wire in connection with the initial capitalization of ▇▇▇▇▇▇ Wire and the
purchase of the Branford Purchased Assets; and
2.2 the purchase by ▇▇▇▇▇▇ Wire of the Branford Purchased Assets
pursuant to the terms of the Branford Purchase Documents as in effect on the
date hereof.
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Section 3. ASSUMPTION OF OBLIGATIONS AND ACKNOWLEDGEMENT OF FINANCING
AGREEMENTS. ▇▇▇▇▇▇ Wire hereby expressly:
3.1 assumes and agrees to be directly liable to Agent and Lenders,
jointly and severally, with ▇▇▇▇▇▇ Parent, for all Obligations under, contained
in, or arising pursuant to the Loan Agreement or any of the other Financing
Agreements;
3.2 agrees to perform, comply with and be bound by all terms, conditions
and covenants of the Loan Agreement and the other Financing Agreements
applicable to Borrower; and
3.3 agrees that Agent and Lenders shall have all rights, remedies and
interests, including security interests in and to the Collateral granted
pursuant to Section 4 hereof, the Loan Agreement and the other Financing
Agreements, with respect to ▇▇▇▇▇▇ Wire and its properties and assets with the
same force and effect as Agent and Lenders have with respect to ▇▇▇▇▇▇ Parent
and its assets and properties.
Section 4. GRANT OF SECURITY INTEREST.
4.1 Without limiting the provisions of Section 3 hereof, the Loan
Agreement and the other Financing Agreements, to secure payment and performance
of its Secured Obligations, ▇▇▇▇▇▇ Wire hereby grants to Agent, for the benefit
of Secured Parties, a continuing security interest in, a lien upon, and a right
of set off against, all personal property and fixtures, and interests in
personal property and fixtures, of ▇▇▇▇▇▇ Wire, whether now owned or hereafter
acquired or existing, and wherever located, including without limitation, the
following:
(a) all Accounts;
(b) all general intangibles, including, without limitation, all
Intellectual Property;
(c) all goods, including, without limitation, Inventory and
Equipment;
(d) all chattel paper, including, without limitation, all tangible
and electronic chattel paper;
(e) all instruments, including, without limitation, all promissory
notes;
(f) all documents;
(g) all deposit accounts;
(h) all letters of credit, banker's acceptances and similar
instruments and including all letter-of-credit rights;
(i) all supporting obligations and all present and future liens,
security interests, rights, remedies, title and interest in, to and in respect
of Receivables and other Collateral, including (i) rights and remedies under or
relating to guaranties, contracts of suretyship, letters of credit and credit
and other insurance related to the Collateral, (ii) rights of stoppage in
transit, replevin, repossession, reclamation and other rights and remedies of an
unpaid vendor, lienor or
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secured party, (iii) goods described in invoices, documents, contracts or
instruments with respect to, or otherwise representing or evidencing,
Receivables or other Collateral, including returned, repossessed and reclaimed
goods, and (iv) deposits by and property of account debtors or other persons
securing the obligations of account debtors;
(j) all (i) investment property (including securities, whether
certificated or uncertificated, securities accounts, security entitlements,
commodity contracts or commodity accounts) and (ii) monies, credit balances,
deposits and other property of ▇▇▇▇▇▇ Wire now or hereafter held or received by
or in transit to Agent, any Lender or its Affiliates or at any other depository
or other institution from or for the account of ▇▇▇▇▇▇ Wire, whether for
safekeeping, pledge, custody, transmission, collection or otherwise;
(k) all commercial tort claims listed on Schedule 4.1 hereto;
(l) to the extent not otherwise described above, all Receivables;
(m) all Records; and
(n) all products and proceeds of the foregoing, in any form,
including insurance proceeds (other than business interruption insurance
proceeds) and all claims against third parties for loss or damage to or
destruction of or other involuntary conversion of any kind or nature of any or
all of the other Collateral described above, it being understood and agreed that
for the purposes of this grant, the term "Borrower" as the same appears in the
definitions of Accounts, Intellectual Property, Inventory, Equipment,
Receivables and Records which are incorporated herein by reference to the Loan
Agreement shall mean ▇▇▇▇▇▇ Wire.
4.2 Without limiting the generality of the foregoing, the Collateral
shall include, and ▇▇▇▇▇▇ Wire hereby grants (and ▇▇▇▇▇▇ Parent hereby confirms
its grant of) a security interest in and lien upon, to Agent, for the benefit of
the Secured Parties, to secure payment in full of all of the Secured
Obligations, all of such Borrower's now existing or hereafter arising right,
title and interest in and to each of the Branford Purchase Documents and all
proceeds thereunder, including, but not limited to, (a) all rights of such
Borrower to receive monies due to become due to it thereunder or in connection
therewith; (b) all rights of such Borrower to indemnification and claims for
damages or other relief pursuant to or in respect of the Branford Purchase
Documents; (c) all rights of such Borrower to perform and exercise all remedies
thereunder and to require performance by the other parties to the Branford
Purchase Documents of its obligations thereunder; and (d) all proceeds,
collections, recoveries and rights of subrogation with respect to the foregoing.
The grant of security interest and lien is provided only as security for the
Secured Obligations and, therefore shall not subject Agent or any Lender to, or
transfer or pass to Agent or any Lender, or in any way affect or modify, the
liability of a Borrower under any of the Branford Purchase Documents. In no
event shall the grant of the security interest and lien provided for herein or
the exercise by Agent or any Lender of any rights hereunder or assigned hereby,
constitute an assumption of any liability or obligation of Agent or any Lender
to any of the other parties to the Branford Purchase Documents or any other
persons.
4.3 Notwithstanding anything to the contrary set forth in Section 4.1
above, the types or items of Collateral described in such Section shall not
include:
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(a) any rights or interests in any contract, lease, permit, license,
charter or license agreement covering real or personal property, as such, if
under the terms of such contract, lease, permit, license, charter or license
agreement, or applicable law with respect thereto, the valid grant of a security
interest or lien therein to Agent is prohibited and such prohibition has not
been or is not waived or the consent of the other party to such contract, lease,
permit, license, charter or license agreement has not been or is not otherwise
obtained or under applicable law such prohibition cannot be waived; provided,
that, the foregoing exclusion shall in no way be construed (A) to apply if any
such prohibition is unenforceable under Sections 9-406, 9-407 or 9-408 of the
UCC or other applicable law or (B) so as to limit, impair or otherwise affect
Agent's unconditional continuing security interests in and liens upon any rights
or interests of a Borrower in or to monies due or to become due under any such
contract, lease, permit, license, charter or license agreement (including any
Receivables);
(b) trademark or servicemark applications that have been filed with
the U.S. Patent and Trademark Office on the basis of an "intent-to-use" with
respect to such marks, unless and until a statement of use or amendment to
allege use is filed or any other filing is made or circumstances otherwise
change so that the interests of ▇▇▇▇▇▇ Wire in such marks is no longer on an
"intent-to-use" basis, at which time such marks shall automatically and without
further action by the parties be subject to the security interests and liens
granted by ▇▇▇▇▇▇ Wire to Agent hereunder.
4.4 Each Borrower irrevocably and unconditionally authorizes Agent (or
its agent) to file at any time and from time to time such financing statements
with respect to the Collateral naming Agent as the secured party and such
Borrower as Debtor, as Agent may require, and including any other information
with respect to such Borrower or otherwise required by Part 5 of Article 9 of
the Uniform Commercial Code of such jurisdiction as Agent may determine,
together with any amendment and continuations with respect thereto, which
authorization shall apply to all financing statements filed on, prior to or
after the date hereof. Such financing statements may describe the Collateral in
the same manner as described herein or in any security agreement or pledge
agreement entered into by the parties in connection herewith or may contain an
indication or description of collateral that describes such property in any
other manner as the Agent may determine, in its sole discretion, is necessary,
advisable or prudent to ensure the perfection of the security interest in the
Collateral granted to the Agent in connection herewith or therewith. Each
Borrower hereby ratifies and approves all financing statements naming Agent or
its designee as secured party and such Borrower, as debtor with respect to the
Collateral (and any amendments with respect to such financing statements) filed
by or on behalf of Agent prior to the date hereof and ratifies and confirms the
authorization of Agent to file such financing statements (and amendments, if
any). Each Borrower hereby authorizes Agent to adopt on behalf of such Borrower
any symbol required for authenticating any electronic filing. In the event that
the description of the collateral in any financing statement naming Agent or its
designee as the secured party and any Borrower as debtor includes assets and
properties of such Borrower that do not at any time constitute Collateral,
whether hereunder, under any of the other Financing Agreements or otherwise, the
filing of such financing statement shall nonetheless be deemed authorized by
such Borrower to the extent of the Collateral included in such description and
it shall not render the financing statement ineffective as to any of the
Collateral or otherwise affect the financing statement as it applies to any of
the Collateral.
9
Section 5. AMENDMENTS TO LOAN AGREEMENT.
5.1 Section 2.1(a) of the Loan Agreement is hereby deleted in its
entirety and the following substituted therefor:
"(a) Subject to and upon the terms and conditions contained herein,
each Tranche A Lender severally (and not jointly) agrees to make its Pro
Rata Share of Tranche A Loans to: (i) ▇▇▇▇▇▇ Parent from time to time in
amounts requested by ▇▇▇▇▇▇ Parent in the aggregate amount for the Tranche
A Loans of all Tranche A Lenders of up to the lesser of (A) the Borrowing
Base of ▇▇▇▇▇▇ Parent at such time or (B) the Tranche A Commitments minus
the then outstanding Tranche A Loans to ▇▇▇▇▇▇ Wire and (ii) ▇▇▇▇▇▇ Wire
from time to time in amounts requested by or on behalf of ▇▇▇▇▇▇ Wire in
the aggregate amount for the Tranche A Loans of all Tranche A Lenders of up
to the lesser of: (A) the Borrowing Base of ▇▇▇▇▇▇ Wire at such time or (B)
the Tranche A Commitments minus the then outstanding Tranche A Loans to
▇▇▇▇▇▇ Parent."
5.2 Section 2.1(b) of the Loan Agreement is hereby deleted in its
entirety and the following is substituted therefor:
"(b) Subject to and upon the terms and conditions contained herein,
each Tranche B Lender severally (and not jointly) agrees to make its Pro
Rata Share of Tranche B Loans to: (i) ▇▇▇▇▇▇ Parent from time to time in
amounts requested by ▇▇▇▇▇▇ Parent in the aggregate amount for the Tranche
B Loans of all Tranche B Lenders of up to the lesser of (A) the Tranche B
Borrowing Base of ▇▇▇▇▇▇ Parent at such time and (B) the Tranche B
Commitments minus the then outstanding Tranche B Loans to ▇▇▇▇▇▇ Wire and
(ii) ▇▇▇▇▇▇ Wire in amounts requested by or on behalf of ▇▇▇▇▇▇ Wire in the
aggregate amount for the Tranche B Loans of all Tranche B Lenders up to the
lesser of (A) the Tranche B Borrowing Base of ▇▇▇▇▇▇ Wire at such time and
(B) the Tranche B Commitments minus the then outstanding Tranche B Loans to
▇▇▇▇▇▇ Parent; PROVIDED, THAT, Tranche B Loans will only be made at such
time as the then outstanding amount of Trache A Loans equals or exceeds the
Tranche A Loan Limit ."
5.3 Section 2.1(c) of the Loan Agreement is hereby amended by adding new
clauses (vii), (viii), (ix) and (x) at the end thereof as follows:
"(vii) the aggregate principal amount of the Tranche A Loans and
Tranche B Loans to ▇▇▇▇▇▇ Parent outstanding at any time shall not exceed
the ▇▇▇▇▇▇ Parent Borrowing Base, (viii) the aggregate principal amount of
Tranche A Loans and Tranche B Loans to ▇▇▇▇▇▇ Wire outstanding at any time
shall not exceed the ▇▇▇▇▇▇ Wire Borrowing Base, (ix) the aggregate
principal amount of the Loans to ▇▇▇▇▇▇ Parent outstanding at any time
based on Eligible Inventory of ▇▇▇▇▇▇ Parent shall not exceed the Inventory
Loan Limit applicable to ▇▇▇▇▇▇ Parent, and (x) the aggregate principal
amount of the Loans to ▇▇▇▇▇▇ Wire
10
outstanding at any time based on Eligible Inventory of ▇▇▇▇▇▇ Wire shall
not exceed the Inventory Loan Limit applicable to ▇▇▇▇▇▇ Wire."
5.4 Section 2.1(d) of the Loan Agreement is hereby deleted in its
entirety and the following substituted therefor:
"(d) In the event that the aggregate principal amount of the Loans
and Letter of Credit Accommodations outstanding at any time exceeds the
Maximum Credit, or the aggregate principal amount of the Tranche A Loans
and the Tranche B Loans exceeds the Borrowing Base, or the aggregate
principal amount of outstanding Tranche A Loans exceeds the Tranche A Loan
Limit, or the aggregate principal amount of outstanding Tranche B Loans
exceeds the Tranche B Loan Limit, or the aggregate principal amount of
Loans and Letter of Credit Accommodations based on the Eligible Inventory
exceed the Inventory Loan Limit, or the aggregate amount of the outstanding
Letter of Credit Accommodations exceed the sublimit for Letter of Credit
Accommodations set forth in Section 2.2(e), or the aggregate principal
amount of the Tranche A Loans and Tranche B Loans applicable to ▇▇▇▇▇▇
Parent outstanding at any time exceed the ▇▇▇▇▇▇ Parent Borrowing Base, or
the aggregate principal amount of Tranche A Loans to ▇▇▇▇▇▇ Wire
outstanding at any time exceed the ▇▇▇▇▇▇ Wire Borrowing Base, or the
aggregate principal amount of the Loans to ▇▇▇▇▇▇ Parent outstanding at any
time based on Eligible Inventory of ▇▇▇▇▇▇ Parent exceed the Inventory Loan
Limit applicable to ▇▇▇▇▇▇ Parent, or the aggregate principal amount of the
Loans to ▇▇▇▇▇▇ Wire outstanding at any time based on Eligible Inventory of
▇▇▇▇▇▇ Wire exceed the Inventory Loan Limit applicable to ▇▇▇▇▇▇ Wire, in
any case such event shall not limit, waive or otherwise affect any rights
of Agent or Lenders in such circumstances or on any future occasions and
Borrower shall, upon demand by Agent, which may be made at any time or from
time to time, immediately repay to Agent the entire amount of any such
excess(es) for which payment is demanded."
5.5 Section 2.1(e) of the Loan Agreement is hereby amended (a) to delete
the reference to the figure "$85,000,000" contained therein and substitute the
following therefor: "$95,000,000" and (b) to delete the reference to "and
1.117(b)" and substitute the following therefor: "1.117(b) and 6.4(a)"
5.6 Section 2.1(f) of the Loan Agreement is hereby deleted in its
entirety and the following substituted therefor:
"(f) The method for calculating the Pro Rata Shares of each
Lender as set forth in Section 2.1(e) above shall apply as to each
Lender whether or not such Lender has only a Tranche A Commitment,
only a Tranche B Commitment or both and shall apply as to such
Lender's obligation to make Loans and receive payments (pursuant to
any section of this Agreement, including Section 6.4(a)) in respect
of such Loans in the circumstances when Section 2.1(e) hereof is
applicable regardless of whether any such loans would be deemed to
constitute Tranche A Loans
11
or Tranche B Loans and regardless of whether any such payments
would otherwise be allocated to Tranche A Loans or Tranche B Loans
for purposes of Section 6.4(a) hereof and, for purposes of this
Section 2.1, regardless of whether such Lender is a Tranche A
Lender and/or a Tranche B Lender. Nothing contained herein shall be
construed to mean that any Lender that has only a Tranche A
Commitment also has a Tranche B Commitment for purposes of the Loan
Agreement or that any Lender has only a Tranche A Commitment is a
Tranche B Lender for purposes of the Loan Agreement."
5.7 Section 6.4(a) of the Loan Agreement is hereby amended to add the
following at the end thereof: "Notwithstanding anything to the contrary
contained in this Agreement, payments with proceeds of Collateral of ▇▇▇▇▇▇
Parent shall be applied to the payment of the Obligations of ▇▇▇▇▇▇ Parent and
payments with proceeds of Collateral of ▇▇▇▇▇▇ Wire shall be applied to the
payment of the Obligations of ▇▇▇▇▇▇ Wire, except (at any time an Event of
Default exists or has occurred and is continuing) as Agent may from time to time
otherwise determine."
5.8 Section 9.7(b)(i) of the Loan Agreement is hereby amended by adding
the following words thereto at the end thereof: "and transfers of Inventory by
▇▇▇▇▇▇ Wire to the Sellers pursuant to the post-closing adjustment contemplated
under the Branford Purchase Agreement as in effect on the date of
Amendment No. 1."
5.9 Section 9.10 of the Loan Agreement is hereby amended to add a new
Section 9.10(j) at the end thereof as follows:
"(j) loans by ▇▇▇▇▇▇ Parent to ▇▇▇▇▇▇ Wire from time to time on and
after the date of Amendment No. 1, PROVIDED, THAT, (i) the Indebtedness
arising pursuant to any such loan shall not be evidenced by a promissory
note or other instrument, unless the single original of such note or other
instrument is promptly delivered to Agent upon its request to hold as part
of the Collateral, with such endorsement and/or assignment by the payee of
such note or other instrument as Agent may require, (ii) as of the date of
any such loan and after giving effect thereto, the ▇▇▇▇▇▇ Parent Excess
Availability shall be not less than $500,000, (iii) except as Agent may
from time to time otherwise agree, ▇▇▇▇▇▇ shall not make, and shall not be
required to make, any payments in respect of the Indebtedness of ▇▇▇▇▇▇
Wire to ▇▇▇▇▇▇ Parent arising pursuant to such loans, unless as of the date
of any such payments, and after giving effect thereto, the ▇▇▇▇▇▇ Wire
Excess Availability shall be not less than $250,000, and (iv) except as
Agent may from time to time otherwise agree, as of the date of any such
loan, or the repayment of any Indebtedness arising pursuant to such loan,
and in each case after giving effect thereto, no Default or Event of
Default shall exist or have occurred and be continuing."
5.10 Section 9.12(a) of the Loan Agreement is hereby amended to delete
the reference to "Sections 9.10(g) and 9.10(h)" contained therein and substitute
the following therefor: "Sections 9.10(g), 9.10(h) and 9.10(j).
12
5.11 Section 9.16(d)(ii) of the Loan Agreement is hereby amended by
adding the following words thereto at the end thereof: "and the other Financing
Agreements".
5.12 Section 13.2 of the Loan Agreement is hereby amended by adding a new
clause (n) at the end thereof as follows:
"(n) From and after the effective date of Amendment No. 1 (i) all
payment and indemnity obligations of the "Borrower" contained herein shall
constitute the joint and several obligations of each Borrower, and all
other obligations of the "Borrower" contained herein shall constitute
obligations of each Borrower and (ii) all references to information
contained on the "Information Certificate" shall, with respect to each
Borrower, be a reference to the Information Certificate delivered by such
Borrower."
Section 6. APPOINTMENT OF ▇▇▇▇▇▇ PARENT AS AGENT FOR REQUESTING LOANS
AND RECEIPTS OF LOANS AND STATEMENTS.
6.1 ▇▇▇▇▇▇ Wire hereby irrevocably appoints and constitutes ▇▇▇▇▇▇
Parent as its agent to request Loans and Letter of Credit Accommodations
pursuant to the Loan Agreement and the other Financing Agreements from Agent or
any Lender in the name or on behalf of such Borrower. Agent and Lenders shall
disburse the Loans to such bank account of ▇▇▇▇▇▇ Parent or ▇▇▇▇▇▇ Wire or
otherwise make such Loans and provide such Letter of Credit Accommodations to a
Borrower as ▇▇▇▇▇▇ Parent may designate or direct. Notwithstanding anything to
the contrary contained herein, Agent may at any time and from time to time
require that Loans to or for the account of any Borrower be disbursed directly
to an operating account of such Borrower.
6.2 ▇▇▇▇▇▇ Parent hereby accepts the appointment by ▇▇▇▇▇▇ Wire to act
as the agent of ▇▇▇▇▇▇ Wire pursuant to this Section 6. ▇▇▇▇▇▇ Parent shall
ensure that the disbursement of any Loans to each Borrower requested by or paid
to or for the account of such Borrower, or the issuance of any Letter of Credit
Accommodations for a Borrower hereunder, shall be paid to or for the account of
such Borrower.
6.3 ▇▇▇▇▇▇ Wire hereby irrevocably appoints and constitutes ▇▇▇▇▇▇
Parent as its agent to receive statements on account and all other notices from
Agent and Lenders with respect to the Obligations or otherwise under or in
connection with this Agreement and the other Financing Agreements.
6.4 Any notice or election, (and any representation, warranty, agreement
or undertaking made in connection therewith) by or on behalf of ▇▇▇▇▇▇ Wire by
▇▇▇▇▇▇ Parent shall be deemed for all purposes to have been made by ▇▇▇▇▇▇ Wire,
and shall be binding upon and enforceable against ▇▇▇▇▇▇ Wire to the same extent
as if made directly by ▇▇▇▇▇▇ Wire.
6.5 No purported termination of the appointment of ▇▇▇▇▇▇ Parent as
agent as aforesaid shall be effective, except after ten (10) days' prior written
notice to Agent.
13
Section 7. SCHEDULES.
7.1 Each of Schedule 6.6(b) of the Loan Agreement is hereby amended and
restated in its entirety by Amended and Restated Schedule 6.6(b) to this
Amendment No. 1.
7.2 Schedule 1.134 hereto is hereby added to the Loan Agreement as
Schedule 1.134 and made a part thereof.
7.3 AMENDMENT FEE. In addition to all the other fees, charges, interest
and expenses payable to Borrowers to Agent and Lenders under the Loan Agreement
and the other Financing Agreements, Borrowers shall pay to Agent for the account
of Lenders, contemporaneously with the effectiveness of this Agreement, an
amendment fee in the amount of $50,000, which fee shall be fully earned and
payable on the effective date hereof and may be charged to any loan account of
Borrowers.
Section 8. REPRESENTATIONS AND WARRANTIES. Each Borrower (including
▇▇▇▇▇▇ Wire) hereby represents and warrants to Agent and Lenders the following
(which shall survive the execution and delivery of this Amendment No. 1), the
truth and accuracy of which on the date hereof are a continuing condition of the
making of Loans and providing Letter of Credit Accommodations to Borrowers:
8.1 This Amendment No. 1 and each other Agreement or instrument to be
executed and delivered by ▇▇▇▇▇▇ Parent or ▇▇▇▇▇▇ Wire pursuant hereto have been
duly authorized, executed and delivered by it, and has been authorized by all
necessary action on the part of such Borrower which is a party hereto and
thereto (and, if necessary, their respective stockholders) and each such
agreement is in full force and effect as of the date hereof, and the agreements
and obligations of ▇▇▇▇▇▇ Parent and ▇▇▇▇▇▇ Wire, as the case may be, contained
herein and therein, constitute the legal, valid and binding obligations of such
Borrower, enforceable against it in accordance with their respective terms,
except as such enforceability may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and by general principles of equity.
8.2 The execution, delivery and performance of this Amendment No. 1 (a)
are all within the corporate powers of ▇▇▇▇▇▇ Parent and ▇▇▇▇▇▇ Wire and (b) are
not in contravention of law or the terms of such Borrower's certificate of
incorporation, by-laws, or other organizational documentation, or any indenture,
agreement or undertaking to which such Borrower is a party or by which such
Borrower or its property are bound.
8.3 ▇▇▇▇▇▇ Wire is a Delaware corporation, duly organized and validly
existing in good standing under the laws of the State of Delaware and has all
requisite power and authority to own, lease and operate its properties, if any,
and to carry on its business as it is now being conducted.
8.4 All of the outstanding shares of Capital Stock of ▇▇▇▇▇▇ Wire have
been duly authorized, validly issued and are fully paid and non-assessable, free
and clear of all claims, liens, pledges and encumbrances of any kind. ▇▇▇▇▇▇
Parent is the beneficial and direct owner of record of one hundred (100%)
percent of the issued and outstanding shares of Capital Stock of ▇▇▇▇▇▇ Wire.
There is no debt outstanding that is convertible into Capital Stock of ▇▇▇▇▇▇
14
Wire, and there are no outstanding rights, options or warrants to acquire any
Capital Stock or debt convertible into capital stock of ▇▇▇▇▇▇ Wire.
8.5 After giving effect to this Amendment, no Default or Event of
Default exists or has occurred and is continuing.
8.6 ▇▇▇▇▇▇ Wire has acquired all of the Sellers' rights, title and
interest in and to the Branford Purchased Assets, free and clear of all liens,
claims, charges and encumbrances in accordance with the Branford Purchase
Documents.
8.7 Neither the execution and delivery of the Branford Purchase
Documents, nor the consummation of the transactions contemplated by the Branford
Purchase Documents, nor compliance with the provisions of the Branford Purchase
Documents or instruments thereunder shall result in (a) the creation or
imposition of any lien, claim, charge or encumbrance upon any of the Collateral,
except in favor of Agent, for the benefit of the Secured Parties, or as
expressly permitted by Section 9.8 of the Loan Agreement and by the other
Financing Agreements or (b) the incurrence, creation or assumption of any
Indebtedness of a Borrower, except as expressly permitted under Section 9.9 of
the Loan Agreement.
8.8 All actions and proceedings required by the Branford Purchase
Documents, applicable law or regulation have been duly and validly taken and
consummated.
8.9 No court of competent jurisdiction has issued any injunction,
restraining order or other order which prohibits consummation of the
transactions contemplated in respect of the Branford Purchase Documents and no
governmental or other action or proceeding has been threatened or commenced in
the United States of America, seeking any injunction, restraining order or other
order which seeks to void or otherwise modify the transactions described in the
Branford Purchase Documents, nor compliance with the provisions thereof, has
violated or shall violate any Federal or State securities laws or any other law
or regulation or any order or decree of any court or governmental
instrumentality in respect or does or shall conflict with or result in the
breach of, or constitute a default in any respect under, any indenture,
mortgage, deed of trust, security agreement or other agreement or instrument to
which a Borrower is a party or may be bound, or violate any provision of the
organizational documents of a Borrower.
8.10 Agent has, on or before the date hereof, received from ▇▇▇▇▇▇ Wire,
true and complete copies of the Branford Purchase Documents and all notices,
consents, instruments, documents and agreements relating thereto, including all
exhibits and schedules thereto, all as duly executed and delivered by the
parties thereto.
8.11 Borrowers shall take such steps and execute and deliver, such
further agreements, documents and instruments as Agent may require in order to
more fully evidence, perfect and protect Agent's security interest in, among
other Collateral, the Branford Purchased Assets.
8.12 Each of the Branford Purchase Documents has been duly authorized,
executed and delivered by ▇▇▇▇▇▇ Wire, and each is in full force and effect as
of the date hereof. No material default by ▇▇▇▇▇▇ Wire under or with respect to
the Branford Purchase Documents exists or has occurred. To the best of the
knowledge of Borrowers, no default by any party (other than ▇▇▇▇▇▇ Wire) under
or with respect to any material agreement contained in the Branford
15
Purchase Documents exists or has occurred. Borrowers have obtained all consents
required for the valid and binding assignment of, and grant to Agent of a
security interest in, the Branford Purchase Documents and such consents are in
full force and effect.
Section 9. COVENANTS.
9.1 Borrowers will not consent to or enter into any modification,
alteration, amendment or cancellation of the Branford Purchase Documents or any
agreement or instrument related thereto, or waive or release any rights,
remedies or benefits of a Borrower under the Branford Purchase Documents or any
agreement or instrument related thereto, without the prior written consent of
Agent in each case. Borrowers will give prompt notice to Agent of any notice of
default or any other notice under any of the Branford Purchase Documents at any
time received by a Borrower promptly upon receipt thereof or sent by a Borrower
or on its behalf concurrently with the sending thereof, in each case together
with a complete copy of such notice. Borrowers shall promptly and faithfully
abide by, perform and discharge in all material respects the obligations,
covenants, conditions and duties which the Branford Purchase Documents provide
are to be performed by a Borrower.
9.2 Borrowers shall: (a) promptly notify Agent of any amounts required
to be paid by or to a Borrower (or for its benefit) in connection with the
Branford Purchase Documents, including as part of any purchase price adjustment,
(b) promptly notify Agent of each and every dispute with, proceeding or claim
against, cause of action or litigation involving any Person for which a Borrower
has or may have any right to indemnification or claim for damages or other
relief or remedies, whether at law or in equity, arising under or in connection
with the Branford Purchase Documents, (c) diligently enforce all rights to
indemnification or claim for damages or other relief or remedies, whether at law
or in equity, arising under or in connection with the Branford Purchase
Documents, (d) promptly provide Agent with copies of all notices, demands,
requests or other communications sent or received by, or on behalf of, a
Borrower pursuant to the Branford Purchase Documents, as well as prior written
notice of a Borrower's intention to exercise any power, right or remedy pursuant
to the Branford Purchase Documents and (e) not take any action that adversely
affects, in the good faith judgment of Agent, the rights of a Borrower under the
Branford Purchase Documents in any material respect.
9.3 In no event shall a Borrower, without the prior written consent of
Agent, waive, release or discharge any of its rights or any of the obligations,
duties or liabilities of any other party to any of the Branford Purchase
Documents or compromise or settle any right or any claim or dispute with respect
to any of its rights or any of the obligations, duties or liabilities of any
other party to any of the Branford Purchase Documents. No such waiver, release,
discharge, compromise or settlement shall be effective without the prior written
consent of Agent.
9.4 At any time an Event of Default exists or has occurred and is
continuing, without limiting any other rights or remedies of Agent or Lenders,
Agent shall have all rights and remedies under the Loan Agreement and the other
Financing Agreements, the Uniform Commercial Code and other applicable law, and
shall have the absolute right to enforce, in its name, any and all rights to
indemnification or claim for damages or other relief or remedies, whether at law
or in equity, arising under or in connection with the Branford Purchase
Documents, or otherwise and apply the proceeds thereof to the Obligations in
such order or
16
manner as Agent shall determine. In order to effectuate the foregoing, each
Borrower, for itself and its respective successors and assigns, hereby
constitutes and appoints Agent and each officer and employee thereof (effective
at any time an Event of Default exists or has occurred and is continuing) as its
attorney-in-fact with power to assert claims and commence and prosecute suit
against any Person or to settle or compromise any such claim or suit relating to
any such right, claim, relief or remedy, and to sign and file any and all papers
required in connection therewith and to take any and all other action which
Agent may, in its good faith discretion, deem appropriate. Each Borrower hereby
ratifies and approves all acts which Agent or any officer or employee thereof as
attorney may do and this power of attorney, being coupled with an interest, is
irrevocable as long as any of the Obligations remain outstanding.
Section 10. CONDITIONS PRECEDENT. The consents and amendments contained
herein shall only be effective upon the receipt by Agent of each of the
following, in each case in form and substance reasonably satisfactory to Agent:
10.1 an executed original or executed original counterparts of this
Amendment No. 1 (as the case may be), duly authorized, executed and delivered by
the respective party or parties hereto;
10.2 all consents, waivers, acknowledgments and other agreements from
third persons (other than Deposit Account Control Agreements and Collateral
Access Agreements relating to those accounts and premises not identified on
Schedule 10.2 hereto) which Agent may deem necessary or desirable in order to
permit, protect and perfect its security interests in and liens upon the
Collateral of ▇▇▇▇▇▇ Wire, including, without limitation, the Branford Purchased
Assets, in favor of Agent or to effectuate the provisions or purposes of this
Amendment No. 1 and the other Financing Agreements;
10.3 Deposit Account Control Agreements by and among Agent, ▇▇▇▇▇▇ Wire
and each bank where ▇▇▇▇▇▇ Wire has a deposit account identified on Schedule
10.3 hereto, in each case, duly authorized, executed and delivered by such bank
and ▇▇▇▇▇▇ Wire;
10.4 the properly completed Information Certificate of ▇▇▇▇▇▇ Wire duly
authorized, executed and delivered by ▇▇▇▇▇▇ Wire;
10.5 (a) a copy of the Certificate of Incorporation of ▇▇▇▇▇▇ Wire, and
all amendments thereto, certified by the Secretary of State of its jurisdiction
of incorporation as of the most recent practicable date certifying that each of
the foregoing documents remains in full force and effect and has not been
modified or amended, except as described therein, (b) a copy of the By-Laws of
▇▇▇▇▇▇ Wire, certified by the Secretary of ▇▇▇▇▇▇ Wire, and (c) a certificate
from the Secretary of ▇▇▇▇▇▇ Wire dated the date hereof certifying that each of
the foregoing documents remains in full force and effect and has not been
modified or amended, except as described therein;
10.6 Secretary's Certificates of Directors' Resolutions evidencing the
adoption and subsistence of corporate resolutions approving the execution,
delivery and performance by Borrowers of this Amendment No. 1 and the
agreements, documents and instruments to be delivered pursuant to this
Amendment No. 1;
17
10.7 original good standing certificates (or its equivalent) from the
Secretary of State (or equivalent Governmental Authority) from each jurisdiction
where ▇▇▇▇▇▇ Wire conducts business;
10.8 a true and correct copy of any consent, waiver or approval (if any)
to or of this Amendment No. 1, which any Borrower is required to obtain from any
other Person;
10.9 such opinion letter(s) of counsel to Borrowers with respect to the
matters contemplated by this Amendment No. 1 and such other matters as Agent may
reasonably request;
10.10 lien and judgment search results for the jurisdiction of
incorporation of ▇▇▇▇▇▇ Wire and each Seller, the jurisdiction of the chief
executive office of ▇▇▇▇▇▇ Wire and each Seller and all jurisdictions in which
assets of ▇▇▇▇▇▇ Wire and each Seller are located, which search results shall be
in form and substance satisfactory to Agent;
10.11 evidence of insurance and loss payee endorsement required hereunder
and under the other Financing Agreements with respect to ▇▇▇▇▇▇ Wire and
certificates of insurance policies and/or endorsement naming Agent as loss
payee;
10.12 a Pledge and Security Agreement by ▇▇▇▇▇▇ Parent in favor of Agent
for the benefit of the Secured Parties, with respect to the pledge of all of the
issued and outstanding shares of capital stock of ▇▇▇▇▇▇ Wire by ▇▇▇▇▇▇ Parent
to Agent for the benefit of Secured Parties, duly authorized, executed and
delivered by ▇▇▇▇▇▇ Parent;
10.13 a Mortgage by ▇▇▇▇▇▇ Wire in favor of Agent, for the benefit of the
Secured Parties, with respect to the Real Property of ▇▇▇▇▇▇ Wire acquired from
Sellers, duly authorized, executed and delivered by ▇▇▇▇▇▇ Wire;
10.14 Agent shall have received environmental audits of the Real Property
of ▇▇▇▇▇▇ Wire to be subject to the Mortgage by ▇▇▇▇▇▇ Wire in favor of Agent
conducted by an independent environmental engineering firm acceptable to Agent,
and in form, scope and methodology satisfactory to Agent, confirming that (i)
▇▇▇▇▇▇ Wire (and its predecessor owner) is in compliance with all material
applicable Environmental Laws and (ii) the absence of any material environmental
problems;
10.15 Agent shall have received, in form and substance satisfactory to
Agent, a valid and effective title insurance policy issued by a company and
agent acceptable to Agent: (i) insuring the priority, amount and sufficiency of
the Mortgages, (ii) insuring against matters that would be disclosed by surveys
and (iii) containing any legally available endorsements, assurances or
affirmative coverage requested by Agent for protection of its interests;
10.16 all releases, terminations and such other documents as Agent may
request to evidence and effectuate the termination or the release by any party
of any interest in and to any of the Branford Purchased Assets, including,
without limitation, a termination agreement duly authorized, executed and
delivered by First-Citizens Bank and Trust Company and UCC termination
statements for all UCC financing statements previously filed by any such person
against a Seller, as debtor;
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10.17 evidence that the Branford Purchase Documents have been duly
authorized, executed and delivered by and to the appropriate parties thereto and
that the transactions contemplated under the terms and conditions of the
Branford Purchase Documents have been consummated prior to or contemplated with
the execution of this Amendment No. 1;
10.18 true and complete copies of the Branford Purchase Documents and all
notices, consents, instruments, documents and agreements relating thereto,
including all exhibits and schedules thereto, all as duly executed and delivered
by the parties thereto; and
10.19 a Seller Acknowledgment Letter by Sellers in favor of Agent with
respect to the Branford Purchase Documents, duly authorized, executed and
delivered by Sellers.
Section 11. ADDITIONAL EVENTS OF DEFAULT. The parties hereto acknowledge,
confirm and agree that the failure of a Borrower to comply with the covenants,
conditions and agreements contained herein shall constitute an Event of Default
under the Loan Agreement and the other Financing Agreements (subject to the
applicable cure period, if any, with respect thereto provided for in the Loan
Agreement as in effect on the date hereof).
Section 12. PROVISIONS OF GENERAL APPLICATION.
12.1 EFFECT OF THIS AMENDMENT. Except as expressly amended pursuant
hereto and except for the consents expressly granted herein, no other changes or
modifications to the Financing Agreements are intended or implied and, in all
other respects, the Financing Agreements are hereby specifically ratified,
restated and confirmed by all parties hereto as of the effective date hereof. To
the extent that any provision of the Loan Agreement or any of the other
Financing Agreements are inconsistent with the provisions of this
Amendment No. 1, the provisions of this Amendment No. 1 shall control. The Loan
Agreement and this Amendment No. 1 shall be read and construed as one Agreement.
12.2 GOVERNING LAW. The validity, interpretation and enforcement of this
Amendment No. 1 and the other Financing Agreements (except as otherwise provided
therein) and any dispute arising out of the parties hereto, whether in contract,
tort, equity or otherwise, shall be governed by the internal laws of the State
of Illinois, but excluding any principles of conflicts of law or other rule of
law that would cause the application of the law of any jurisdiction other than
the laws of the State of Illinois.
12.3 BINDING EFFECT. This Amendment No. 1 shall be binding upon and inure
to the benefit of each of the parties hereto and their respective successors and
assigns. Any acknowledgments or consents contained herein shall not be construed
to constitute a consent to any other or further action by a Borrower or to
entitle such Borrower to any other consent.
12.4 FURTHER ASSURANCES. Each Borrower shall execute and deliver such
additional documents and take such additional action as may be reasonably
requested by Agent and Lenders to effectuate the provisions and purposes of this
Amendment No. 1.
12.5 HEADINGS. The headings listed herein are for convenience only and do
not constitute matters to be construed in interpreting this Amendment No. 1.
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12.6 COUNTERPARTS. This Amendment No. 1 may be executed in any number of
counterparts, each of which shall be an original but all of which taken together
shall constitute one and the same Agreement. Delivery of an executed counterpart
of this Amendment No. 1 by telefacsimile shall have the same force and effect as
the delivery of an original executed counterpart of this Amendment No. 1. Any
party delivering an executed counterpart of this Amendment No. 1 by
telefacsimile shall also deliver an originally executed counterpart of this
Amendment No. 1, but the failure to do so shall not affect the validity,
enforceability or binding effect of this Amendment No. 1.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be duly executed and delivered by their authorized officers as of the date and
year first above written.
CONGRESS FINANCIAL CORPORATION
(CENTRAL), as Agent and as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Title: Vice President
--------------------------
▇▇▇▇▇▇ INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Title: Vice President, Finance and CFO
--------------------------------
▇▇▇▇▇▇ WIRE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Title: Vice President, Finance and CFO
--------------------------------
BANK ONE, NA (Main Office Chicago)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Title: Director
----------------------
WESTERNBANK PUERTO RICO
BUSINESS CREDIT DIVISION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Title: President, Westernbank Business Credit Division
-------------------------------------------------
[The Disclosure Schedules have been omitted from the Agreement as filed
with the Securities and Exchange Commission (the "SEC"). The omitted information
is considered immaterial from an investor's perspective. The Registrant will
furnish supplementally a copy of any of the schedules to the SEC upon request
from the SEC.]
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