EXHIBIT 10.1
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[EXECUTION FINAL]
AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT (this "Amendment") dated
as of June 28, 2006 by and among Omega Wire, Inc. (successor by merger with
Camden Wire Co., Inc., International Wire Rome Operations, Inc. and OWI
Corporation), a Delaware corporation ("Omega"), IWG Resources, LLC, a Nevada
limited liability company ("Resources") and Wire Technologies, Inc., an Indiana
corporation ("Wire Technologies"), IWG High Performance Conductors, Inc.
(formerly known as Xxxxxx Dodge High Performance Conductors of SC & GA, Inc.), a
New York corporation ("High Performance"; together with Omega, Resources and
Wire Technologies, collectively, "Borrowers"), International Wire Group, Inc., a
Delaware corporation ("Parent", and sometimes hereinafter referred to as
"Guarantor"), the parties to the Loan Agreement (as hereinafter defined) as
lenders (each individually, a "Lender" and collectively, "Lenders") and Wachovia
Capital Finance Corporation (Central), formerly known as Congress Financial
Corporation (Central), an Illinois corporation, in its capacity as agent for
Lenders (in such capacity, "Agent").
W I T N E S S E T H
WHEREAS, Agent, Lenders, Borrowers and Guarantors have entered into
financing arrangements pursuant to which Lenders (or Agent on behalf of Lenders)
have made and provided and may hereafter make and provide loans and advances and
other financial accommodations to Borrowers as set forth in the Loan and
Security Agreement, dated October 20, 2004, by and among Agent, Lenders,
Borrowers and Guarantors (as amended by Amendment No. 1 to Loan and Security
Agreement, dated as of March 31, 2006 and as the same may hereafter be further
amended, modified, supplemented, extended, renewed, restated or replaced, the
"Loan Agreement") and the other agreements, documents and instruments referred
to therein or at any time executed and/or delivered in connection therewith or
related thereto (all of the foregoing, including the Loan Agreement, as the same
now exist or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced, being collectively referred to herein as the
"Financing Agreements");
WHEREAS, Borrowers and Guarantors have requested that Agent and Lenders
amend the Loan Agreement to increase the Maximum Credit from $130,000,000 to
$155,000,000 and make certain other amendments to the Loan Agreement; and
WHEREAS, by this Amendment, Agent, Lenders, Borrowers and Guarantor
desire and intend to evidence such amendments.
NOW, THEREFORE, in consideration of the mutual conditions and
agreements and covenants set forth herein, and for other good and valuable
consideration, the adequacy and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
Section 1. Definitions.
1.1 Interpretation. For purposes of this Amendment, all terms used
herein, shall have the respective meanings assigned thereto in the Loan
Agreement, unless otherwise defined herein.
1.2 Additional Definitions. As used herein, the following terms shall
have the meanings given to them below, and the Loan Agreement and the other
Financing Agreements are hereby amended to include, in addition and not in
limitation, the following definitions:
(a) "Amendment No. 2" shall mean Amendment No. 2 to Loan and Security
Agreement, dated as of June 20, 2006, by and among Borrowers, Guarantor, Agent
and Lenders, as the same now exists or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced.
(b) "Amendment No. 2 Effective Date" shall mean June 20, 2006.
(c) "Early Termination Fee Calculation Amount" shall mean $130,000,000.
Section 2. Increase in Maximum Credit. At Borrowers' request, Lenders have
agreed to increase the Maximum Credit from $130,000,000 to $155,000,000 and, in
order to effectuate such amendment, the Loan Agreement is hereby further amended
as follows:
2.1 The definition of "Maximum Credit" set forth in Section 1.93 of the
Loan Agreement is hereby amended and restated in its entirety to read as
follows:
"1.93 "Maximum Credit" shall mean the amount of $155,000,000."
2.2 The definition of "Commitment" set forth in Section 1.27 of the
Loan Agreement is hereby amended and restated in its entirety to read as
follows:
"1.27 "Commitment" shall mean, at any time, as to each Lender,
the principal amount set forth below such Lender's signature
on the signature pages to Amendment No. 2 designated as the
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 from time to time in
accordance with the terms hereof; sometimes being collectively
referred to herein as "Commitments"."
Section 3. Early Termination Fee. At Borrower's request, Agent and Lenders have
agreed that any early termination fee that becomes payable by Borrowers to
Agent, for the benefit of Lenders, pursuant to Section 13.1(c) of the Loan
Agreement shall be calculated based upon the Maximum Credit as in effect
immediately prior to the Amendment No. 2 Effective Date and, in order to
effectuate the foregoing, Section 13.1(c) of the Loan Agreement is hereby
amended by deleting the reference to "Maximum Credit" contained in clauses (ii)
and (iii) thereof and substituting therefor "Early Termination Fee Calculation
Amount".
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Section 4. Representations, Warranties and Covenants. In addition to the
continuing representations, warranties and covenants heretofore or hereafter
made by Borrowers and Guarantors to Agent and Lenders pursuant to the other
Financing Agreements, each Borrower and Guarantor, jointly and severally, hereby
represents, warrants and covenants with and to Agent and Lenders as follows
(which representations, warranties and covenants are continuing and shall
survive the execution and delivery hereof):
4.1 Corporate Power and Authority. This Amendment and each other
agreement or instrument to be executed and delivered by each Borrower and
Guarantor have been duly authorized, executed and delivered by all necessary
action on the part of such Borrower or Guarantor which is a party hereto and
thereto and, if necessary, its stockholders, and is in full force and effect as
of the date hereof, as the case may be, and the agreements and obligations of
each Borrower and Guarantor contained herein and therein constitute legal, valid
and binding obligations of such Borrower or Guarantor enforceable against it in
accordance with their terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium or other laws
affecting creditor's rights generally and by general principles of equity.
4.2 Consents; Approvals. No material action of, or filing with, or
consent of any Governmental Authority (other than the filing of UCC financing
statements and mortgages), and no material approval or consent of any other
party, is required to authorize, or is otherwise required in connection with,
the execution, delivery and performance of this Amendment and the transactions
contemplated hereby.
4.3 No Event of Default. As of the date hereof, and after giving effect
to the provisions of this Amendment, no Default or Event of Default, exists or
has occurred and is continuing. All of the representations and warranties set
forth in the Loan Agreement and the other Financing Agreements, are true and
correct in all material respects on and as of the date hereof as if made on the
date hereof, except to the extent any such representation or warranty is made as
of a specified date, in which case such representation or warranty shall have
been true and correct in all material respects as of such date.
4.4 Violation of Law. None of the transactions contemplated by this
Amendment violate or will violate any applicable material law or regulation, or
do or will give rise to a default or breach under any material agreement to
which any Borrower or Guarantor is a party or by which any material property of
any Borrower or Guarantor is bound.
4.5 Further Assurances. Borrowers and Guarantors shall take such steps
and execute and deliver, and cause to be executed and delivered, to Agent, such
additional UCC financing statements, and other and further agreements, documents
and instruments as Agent may require in order to more fully evidence, perfect
and protect Agent's first priority security interest in the Collateral.
4.6 Mortgage Modifications. The applicable Borrower or Guarantor which
owns the real property described on Schedule A appended hereto shall execute and
deliver to Agent, on or before sixty (60) days following the Amendment No. 2
Effective Date (or such later date as Agent shall agree in writing), in form and
substance reasonably satisfactory to Agent, a Modification with respect to the
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Mortgage covering such real property, duly authorized, executed and delivered by
such Borrower or Guarantor, together with an appropriate endorsement with
respect to the existing mortgagee title insurance policy insuring Agent's
interest in each such Mortgage, as a result of the recordation of each such
Mortgage Modification.
Section 5. Amendment Fee. In addition to (and not in limitation of) all other
fees and charges payable (including, without limitation, the Fee Letter and the
Amended Fee Letter (as defined below) by Borrowers under the Loan Agreement or
any of the other Financing Agreements, Borrower hereby agrees to pay to Agent,
for the account of Lenders (to the extent and in accordance with the
arrangements between Agent and each Lender), an amendment fee in the amount of
$37,500, which fee shall be fully earned and payable on the date hereof and
shall constitute part of the Obligations.
Section 6. Conditions Precedent. The amendments set forth herein shall be
effective upon the satisfaction of each of the following conditions precedent in
a manner reasonably satisfactory to Agent:
6.1 Agent shall have received an original or facsimile of this
Amendment, duly authorized, executed and delivered by Borrowers and Guarantors;
6.2 Agent shall have received, in form and substances reasonably
satisfactory to Agent, the Amendment Fee Letter, dated of even date herewith, by
Parent and Borrowers in favor of Agent, duly authorized, executed and delivered
by Parent and Borrowers (the "Amended Fee Letter");
6.3 Agent shall have received payment of the fee set forth in Section 3
hereof and any other fee payable under the Amended Fee Letter;
6.4 After giving effect to the amendments provided for herein, no
Default or Event of Default shall exist or have occurred; and
6.5 Agent shall have received, in form and substance satisfactory to
Agent, an Amendment No. 2 to Intercreditor Agreement, duly authorized, executed
and delivered by Term Loan Agent.
Section 7. Provisions of General Application.
7.1 Effect of this Amendment. Except as modified pursuant hereto, 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
date hereof. This Amendment represents the entire agreement and understanding
concerning the subject matter hereof and thereof between the parties hereto, and
supersedes all other prior agreements, understandings, negotiations and
discussions, representations, warranties, commitments, proposals, offers and
contracts concerning the subject matter hereof, whether oral or written. To the
extent of a conflict between the terms of this Amendment and the other Financing
Agreements, the terms of this Amendment shall control. The Loan Agreement and
this Amendment shall be read and construed as one agreement.
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7.2 Further Assurances. The parties hereto shall execute and deliver
such additional documents and take such additional action as may be reasonably
necessary or desirable to effectuate the provisions and purposes of this
Amendment.
7.3 Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the laws of the State of New York 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 New York.
7.4 Binding Effect. This Amendment shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns.
7.5 Counterparts. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment, it shall not be necessary
to produce or account for more than one counterpart thereof signed by each of
the parties hereto. This Amendment may be executed and delivered by telecopier
or other method of electronic transmission with the same force and effect as if
it were a manually executed and delivered counterpart.
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IN WITNESS WHEREOF, Agent, Lenders, Borrowers and Guarantors have
caused these presents to be duly executed as of the day and year first above
written.
BORROWERS
OMEGA WIRE, INC.
IWG RESOURCES, LLC
WIRE TECHNOLOGIES, INC.
IWG HIGH PERFORMANCE CONDUCTORS, INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Chief Executive Officer
GUARANTOR
INTERNATIONAL WIRE GROUP, INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Chief Executive Officer
AGENT
WACHOVIA CAPITAL FINANCE
CORPORATION (CENTRAL), formerly
known as Congress Financial Corporation
(Central), as Agent
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Associate
LENDERS
WACHOVIA CAPITAL FINANCE
CORPORATION (CENTRAL), formerly
known as Congress Financial Corporation
(Central)
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Associate
Commitment: $60,000,000
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
JPMORGAN CHASE BANK, N.A.
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
Title: Account Executive
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Commitment: $47,500,000
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
Title: Vice President
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Commitment: $47,500,000
