EXHIBIT 10.3
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[EXECUTION FINAL]
AMENDMENT NO. 2 TO INTERCREDITOR AGREEMENT
THIS AMENDMENT NO. 2 TO INTERCREDITOR AGREEMENT (this "Amendment"),
dated as of June 28, 2006, is by and between WACHOVIA CAPITAL FINANCE
CORPORATION (CENTRAL), an Illinois corporation, formerly known as Congress
Financial Corporation (Central), in its capacity as agent pursuant to the
Working Capital Loan and Security Agreement (as hereinafter defined) for the
lenders who are party from time to time thereto (in such capacity, together with
its successors and assigns in such capacity, "Working Capital Agent") and SILVER
POINT FINANCE LLC, a Delaware limited liability company, in its capacity as
collateral agent pursuant to the Term Loan Agreement (as hereinafter defined)
for the lenders who are party from time to time thereto (in such capacity,
together with its successors and assigns in such capacity, the "Term Loan
Agent").
W I T N E S S E T H:
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WHEREAS, Working Capital Agent and Term Loan Agent have previously
entered into and executed the Intercreditor Agreement, dated as of October 20,
2004 (as the same now exists, the "Intercreditor Agreement"), as acknowledged by
Omega Wire, Inc. (successor by merger with Camden Wire Co., Inc., International
Wire Rome Operations, Inc. and OWI Corporation) ("Omega"), IWG Resources, LLC
("Resources"), Wire Technologies, Inc. ("Wire Technologies", and together with
IWG High Performance Conductors, Inc. ("High Performance"), Omega and Resources,
each individually a "Borrower" and collectively, "Borrowers") and International
Wire Group, Inc. ("Parent", and sometimes hereinafter referred to as
"Guarantor");
WHEREAS, Working Capital Agent and the lenders who are party from time
to time to the Working Capital Loan and Security Agreement (collectively,
"Working Capital Lenders") have entered into financing arrangements with
Borrowers, pursuant to which Working Capital Lenders have made and provided, and
may hereafter, upon certain terms and conditions, make loans and provide other
financial accommodations to Borrowers pursuant to the Loan and Security
Agreement, dated October 20, 2004, by and among Working Capital Agent, Working
Capital Lenders, Borrowers and Parent, as amended by Amendment No. 1 to Loan and
Security Agreement dated as of March 31, 2006, by and among Working Capital
Agent, Working Capital Lenders, Borrowers and Parent and Amendment No. 2 to Loan
and Security Agreement , dated of even date herewith ("Amendment No. 2"), by and
among Working Capital Agent, Working Capital Lenders, Borrowers and Parent (as
the same may be further amended, modified, supplemented, extended, renewed,
restated or replaced, the "Working Capital Loan and Security Agreement");
WHEREAS, Term Loan Agent and the lenders who are party from time to
time to the Term Loan Agreement (collectively, "Term Loan Lenders") have entered
into financing arrangements with Borrowers (except High Performance), pursuant
to which Term Loan Lenders have made terms loans to Borrowers pursuant to the
Loan and Security Agreement, dated October 20, 2004, by and among Term Loan
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Agent, Term Loan Lenders, Borrowers (except High Performance), High Performance,
as a guarantor and Parent, as amended by Amendment No. 1 to Loan and Security
Agreement dated as of March 31, 2006, and Amendment No. 2 to Loan and Security
Agreement, dated of even date herewith (and as the same may be further amended,
modified, supplemented, extended, renewed, restated or replaced, the "Term Loan
Agreement");
WHEREAS, Borrowers desire to incur additional indebtedness owing to
Working Capital Lenders and have requested that Working Capital Lenders amend
the Working Capital Loan and Security Agreement to permit the incurrence of such
indebtedness;
WHEREAS, Working Capital Lenders are willing to agree to such request,
but only on the terms and subject to the conditions contained in Amendment No.
2;
WHEREAS, it is a condition precedent to the effectiveness of Amendment
No. 2 that Working Capital Agent and Term Loan Agent shall have executed and
delivered this Amendment;
NOW THEREFORE, in consideration of the mutual benefits accruing to the
parties hereto and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Definitions. All capitalized terms used herein which are not
otherwise defined herein shall have the meaning ascribed to such term as set
forth in the Intercreditor Agreement.
2. Amendment. The definition of "Maximum W/C Debt" in Section 1.21 of
the Intercreditor Agreement is hereby amended by deleting such definition in its
entirety and replacing it with the following:
" "Maximum W/C Debt" shall mean the sum of: (a) aggregate outstanding
principal amount of loans and outstanding letter of credit
accommodations made or issued pursuant to the Working Capital Loan
Documents up to a maximum amount equal to the lesser of (i)
$155,000,000 and (ii) the amount equal to (A) the Availability,
multiplied by (B) 110%; plus (b) the portion of the aggregate
outstanding principal amount of loans and letter of credit
accommodations that are made or issued pursuant to the Working Capital
Loan and Security Agreement but that are not made or issued
intentionally or with actual knowledge that such loans and letter of
credit accommodations cause the aggregate outstanding principal amount
of loans and letter of credit accommodations to exceed the amount
equal to the Availability multiplied by 110% (but do not exceed
$155,000,000) calculated at the time made or issued; plus (c)
Intentional Overadvances in a principal amount not to exceed
$5,000,000; plus (d) interest, fees, indemnities, costs and expenses
arising under the Working Capital Loan Documents; provided, that, the
term "Availability" as used in this definition shall not include any
obligations or liabilities of any Borrower to any financial
institutions pursuant to any Hedge Agreements in an amount in excess
of the Hedge Reserves."
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3. Effect of this Amendment. Except as modified pursuant hereto, no
other changes or modifications to the Intercreditor Agreement are intended or
implied, and in all other respects, the Intercreditor Agreement is hereby
specifically ratified, restated and confirmed by the parties hereto as of the
effective date hereof. To the extent of conflict between the terms of this
Amendment and the Intercreditor Agreement, the terms of this Amendment shall
control. The Intercreditor Agreement and this Amendment shall be read as one
agreement.
4. Further Assurances. The parties hereto shall execute and deliver
such additional documents and take such additional actions as may be necessary
to effectuate the provisions and purposes of this Amendment.
5. Governing Law. The validity, construction and effect of this
Amendment shall be governed by the laws of the State of New York, but excluding
any principles of conflicts of law or other rules of law that would result in
the application of the law of any jurisdiction other than the laws of the State
of New York.
6. 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. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be an original with the same force and effect
as if the signatures thereto and hereto were upon the same instrument. Delivery
of an executed counterpart of this Amendment by telecopier or other method of
electronic transmission shall have the same force and effect as delivery of an
original executed counterpart of this Amendment.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be
duly executed as of the day and year first above written.
WORKING CAPITAL AGENT
WACHOVIA CAPITAL FINANCE
CORPORATION (CENTRAL), successor by
merger to Congress Financial
Corporation (Central)
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title:Associate
TERM LOAN AGENT
SILVER POINT FINANCE LLC
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
ACKNOWLEDGMENT
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Each of the undersigned hereby acknowledges and agrees to the terms and
provisions of the Intercreditor Agreement as amended by Amendment No. 2 to
Intercreditor Agreement.
Without limiting the generality of the foregoing or any of the other
rights and remedies of Working Capital Agent, any Working Capital Lender, Term
Loan Agent, or any Term Loan Lender, each of the undersigned (i) acknowledges
and confirms the rights of Working Capital Agent and Term Loan Agent set forth
in Section 2.14 of the Intercreditor Agreement, and (ii) agrees to make any
payments (mandatory, permissive, or otherwise) permitted or required by any Term
Loan Document or Working Capital Loan Document in accordance with Section 2.14
regardless of any contrary provision in any Term Loan Document or Working
Capital Loan Document.
By its signature below, each of the undersigned agrees that it will,
together with its successors and assigns, be bound by the provisions hereof.
Each of the undersigned agrees that any Agent or Lender holding or
controlling Collateral does so as bailee (under the UCC) for the other Agents or
Lenders that have a Lien on such Collateral and is hereby authorized to and may
turn over to such other Agents or Lenders upon request therefor any such
Collateral, after all obligations and indebtedness of the undersigned to the
bailee Agent or Lender have been fully paid and performed.
Each of the undersigned acknowledges and agrees that: (i) it is not a
party to the Intercreditor Agreement and does not and will not receive any
right, benefit, priority or interest under or because of the existence of the
foregoing Intercreditor Agreement (except for consents which are deemed to have
been given by Term Loan Agent and Term Loan Lenders under Section 2.9), and (ii)
it will execute and deliver such additional documents and take such additional
action as may be necessary or desirable in the reasonable opinion of any of the
Agents or Lenders to effectuate the provisions and purposes of the foregoing
Intercreditor Agreement.
BORROWERS GUARANTORS
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OMEGA WIRE, INC. INTERNATIONAL WIRE GROUP, INC.
WIRE TECHNOLOGIES, INC. IWG HIGH PERFORMANCE
IWG RESOURCES, LLC CONDUCTORS, INC. (under the
IWG HIGH PERFORMANCE Term Loan Agreement)
CONDUCTORS, INC. (under the Working
Capital Loan and Security Agreement)
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx
Title: Chief Executive Officer Title: Chief Executive Officer
