Exhibit 10(nn)
SIXTH AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this
"Amendment") is entered into as of February 28, 2005, by and among Alpine Holdco
Inc., a Delaware corporation ("Parent"), Essex Electric Inc., a Delaware
corporation ("Electric"; Parent and Electric are collectively, the "Borrowers"
and each, a "Borrower"), Xxxxx Fargo Foothill, Inc., as agent ("Agent") for the
Lenders (defined below) and as a Lender, Congress Financial Corporation
(Central), as documentation agent for the Lenders ("Documentation Agent") and as
a Lender, and the undersigned Lenders.
WHEREAS, Borrowers, Credit Party, Agent, Documentation Agent and
certain other financial institutions from time to time party thereto (the
"Lenders") are parties to that certain Loan and Security Agreement dated as of
December 11, 2002 (as amended from time to time, the "Loan Agreement"); and
WHEREAS, Borrowers, Agent and Lenders have agreed to amend the Loan
Agreement in certain respects, subject to the terms and conditions contained
herein.
NOW THEREFORE, in consideration of the premises and mutual
agreements herein contained, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings ascribed to such terms in the Loan
Agreement.
2. Amendment to Loan Agreement. Subject to the satisfaction of the
conditions set forth in Section 6 hereof, the Loan Agreement is amended in the
following respects:
(a) The defined term "EBITDA" set forth in Section 1.1 of the Loan
Agreement is amended and restated in its entirety, as follows:
"EBITDA" means, with respect to any fiscal period,
Parent's and its Subsidiaries' consolidated net earnings (or
loss), minus extraordinary gains, plus, to the extent deducted
in determining net earnings (or loss) for such period, (i)
interest expense, (ii) income taxes, (iii) depreciation and
amortization, (iv) management fees under the Management
Agreements accrued but not paid due to the operation of the
terms of this Agreement, (v) cash, nonrecurring charges
incurred during the 2004 fiscal year in an aggregate amount
not to exceed $5,500,000, (vi) (A) non-cash, recurring
year-end LIFO adjustments relating to the purchase of copper
cathode and rod by Electric, and (B) non-cash, non-recurring
adjustments made as a result of a sale or other disposition
consummated in accordance with the provisions of this
Agreement of (1) the Real Property and other assets comprising
the facility of Electric located at 000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxxx and/or (2) the Real Property and other assets
comprising the facility of Electric located at 0000 Xxxx
Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx, (vii) nonrecurring charges
incurred during the 2005 fiscal year in connection with
Electric's restructuring activities in an aggregate amount not
to exceed $2,800,000, and (viii) the non-cash, nonrecurring
charge in an amount not to exceed $400,000 incurred in
connection with the issuance to Superior of shares of the
common stock of Electric in January, 2005.
(b) Section 7.21(a)(i) of the Loan Agreement is amended and restated
in its entirety, as follows:
"(i) Minimum EBITDA. EBITDA, measured on a fiscal
month-end basis, for each period set forth below, of not less
than the required amount set forth in the column labeled
"Minimum EBITDA" in the following table for the applicable
period set forth opposite thereto:
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Minimum
Period EBITDA
------------------------------------------------------------------------ -------------------------------
1 month period ending January 31, 2005 ($1,194,000)
------------------------------------------------------------------------ -------------------------------
2 month period ending February 28, 2005 ($2,236,000)
------------------------------------------------------------------------ -------------------------------
3 month period ending March 31, 2005 ($3,004,000)
------------------------------------------------------------------------ -------------------------------
4 month period ending April 30, 2005 ($3,359,000)
------------------------------------------------------------------------ -------------------------------
5 month period ending May 31, 2005 ($3,434,000)
------------------------------------------------------------------------ -------------------------------
6 month period ending June 30, 2005 ($2,953,000)
------------------------------------------------------------------------ -------------------------------
7 month period ending July 31, 2005 ($2,333,000)
------------------------------------------------------------------------ -------------------------------
8 month period ending August 31, 2005 ($1,648,000)
------------------------------------------------------------------------ -------------------------------
9 month period ending September 30, 2005 ($1,004,000)
------------------------------------------------------------------------ -------------------------------
10 month period ending October 31, 2005 ($5,000)
------------------------------------------------------------------------ -------------------------------
11 month period ending November 30, 2005 $458,000
------------------------------------------------------------------------ -------------------------------
12 month period ending December 31, 2005 $812,000
------------------------------------------------------------------------ -------------------------------
12 month period ending January 31, 2006 and the 12 month period ending $5,000,000
on the last day of each month thereafter
------------------------------------------------------------------------ -------------------------------
(c) Section 7.21(c)(i) of the Loan Agreement is amended and restated
in its entirety as follows:
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"(i) Capital Expenditures. Capital expenditures in
any period set forth below in excess of the amount set forth
in the following table for the applicable period:
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Period Amount
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Fiscal year ending December 31, 2005 $5,800,000
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Fiscal year ending December 31, 2006 and each fiscal $2,000,000
year thereafter
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3. Amendment Fee. Borrowers hereby agree to pay to Agent on the date
hereof, for pro rata distribution to the Lenders who have executed and delivered
this Amendment as of the date hereof, an amendment fee of $50,000, which fee
shall be non-refundable and fully earned as of the date hereof. The foregoing
amendment fee is in addition to, and not in lieu of, all other fees charged to
Borrowers under the Loan Documents.
4. Ratification. This Amendment, subject to satisfaction of the
conditions provided below, shall constitute an amendment to the Loan Agreement
and all of the Loan Documents as appropriate to express the agreements contained
herein. In all other respects, the Loan Agreement and the Loan Documents shall
remain unchanged and in full force and effect in accordance with their original
terms.
5. Covenant Regarding 2006 Financial Covenants. Each party hereto
covenants and agrees that it will undertake to negotiate in good faith revisions
to the Minimum EBITDA covenant for the 2006 fiscal year and the Capital
Expenditures covenant for the 2006 fiscal year set forth in Section 7.21 of the
Loan Agreement on the basis of Companies' Projections for the 2006 fiscal year
that are delivered to Agent pursuant to Section 6.3(c) of the Loan Agreement and
approved by Required Lenders.
6. Conditions to Effectiveness. This Amendment shall become
effective as of the date hereof and upon the satisfaction of the following
conditions precedent:
(a) Each party hereto shall have executed and delivered this
Amendment to Agent;
(b) Companies shall have delivered to Agent such documents,
agreements and instruments as may be requested or required by Agent in
connection with this Amendment, each in form and content acceptable to Agent;
(c) No Default or Event of Default shall have occurred and be
continuing on the date hereof or as of the date of the effectiveness of this
Amendment;
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(d) All proceedings taken in connection with the transactions
contemplated by this Amendment and all documents, instruments and other legal
matters incident thereto shall be satisfactory to Agent and its legal counsel;
and
(e) Each Lender shall have received the portion of the amendment fee
payable to such Lender on the date of this Agreement under Section 3 hereof.
7. Miscellaneous.
(a) Representations and Warranties. In order to induce Agent to
enter into this Amendment, each Company hereby warrants to Agent, as of the date
hereof, that the representations and warranties of Companies contained in the
Loan Agreement are true and correct as of the date hereof as if made on the date
hereof (other than those which, by their terms, specifically are made as of
certain dates prior to the date hereof).
(b) Expenses. Companies, jointly and severally, agree to pay on
demand all costs and expenses of Agent (including the reasonable fees and
expenses of outside counsel for Agent) in connection with the preparation,
negotiation, execution, delivery and administration of this Amendment and all
other instruments or documents provided for herein or delivered or to be
delivered hereunder or in connection herewith. In addition, Companies agree,
jointly and severally, to pay, and save Agent harmless from all liability for,
any stamp or other taxes which may be payable in connection with the execution
or delivery of this Amendment or the Loan Agreement, as amended hereby, and the
execution and delivery of any instruments or documents provided for herein or
delivered or to be delivered hereunder or in connection herewith. All
obligations provided herein shall survive any termination of this Amendment and
the Loan Agreement as amended hereby.
(c) Governing Law. This Amendment shall be a contract made under and
governed by the internal laws of the State of Georgia.
(d) Counterparts. This Amendment may be executed in any number of
counterparts, and by the parties hereto on the same or separate counterparts,
and each such counterpart, when executed and delivered, shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same Amendment.
8. Release.
(a) In consideration of the agreements of Agent and Lenders
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each Company, on behalf of itself
and its successors, assigns, and other legal representatives, hereby absolutely,
unconditionally and irrevocably releases, remises and forever discharges Agent
and Lenders, and their successors and assigns, and their present and former
shareholders, affiliates, subsidiaries, divisions, predecessors, directors,
officers, attorneys, employees, agents and other representatives (Agent, each
Lender and all such other Persons being hereinafter referred to collectively as
the "Releasees" and individually as a "Releasee"), of and from all demands,
actions, causes of action, suits, covenants, contracts, controversies,
agreements, promises, sums of money, accounts, bills, reckonings, damages and
any and all other claims, counterclaims, defenses, rights of set-off, demands
and liabilities whatsoever (individually, a "Claim" and collectively, "Claims")
of every name and nature, known or unknown, suspected or unsuspected, both at
law and in equity, which such Company or any of its successors, assigns, or
other legal representatives may now or hereafter own, hold, have or claim to
have against the Releasees or any of them for, upon, or by reason of any
circumstance, action, cause or thing whatsoever which arises at any time on or
prior to the day and date of this Amendment, including, without limitation, for
or on account of, or in relation to, or in any way in connection with any of the
Loan Agreement, or any of the other Loan Documents or transactions thereunder or
related thereto.
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(b) Each Company understands, acknowledges and agrees that the
release set forth above may be pleaded as a full and complete defense and may be
used as a basis for an injunction against any action, suit or other proceeding
which may be instituted, prosecuted or attempted in breach of the provisions of
such release.
(c) Each Company agrees that no fact, event, circumstance, evidence
or transaction which could now be asserted or which may hereafter be discovered
shall affect in any manner the final, absolute and unconditional nature of the
release set forth above.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized and delivered
as of the date first above written.
BORROWERS:
ALPINE HOLDCO INC.,
a Delaware corporation
By /s/ Xxxxx X. Xxxx
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Title V.P. Finance
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ESSEX ELECTRIC INC.,
a Delaware corporation
By /s/ Xxxxx X. Xxxx
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Title S.V.P. Finance
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AGENT:
XXXXX FARGO FOOTHILL, INC.,
a California corporation
By /s/ Xxxxxx Xxxxxx
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Title Senior Vice President
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DOCUMENTATION AGENT:
CONGRESS FINANCIAL CORPORATION (CENTRAL),
an Illinois corporation
By /s/ Xxxxx Xxxxxxxx
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Title Vice President
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LENDERS:
XXXXX FARGO FOOTHILL, INC.
By /s/ Xxxxxx Xxxxxx
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Title Senior Vice President
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STANDARD FEDERAL BANK NATIONAL ASSOCIATION
By: LaSalle Business Credit, LLC, its Agent
By______________________________________________
Title___________________________________________
CONGRESS FINANCIAL CORPORATION (CENTRAL)
By /s/ Xxxxx Xxxxxxxx
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Title Vice President
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