ELEVENTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Exhibit
10.1
ELEVENTH
AMENDMENT TO AMENDED AND RESTATED
ELEVENTH
AMENDMENT, dated as of July 31, 2007 to the Amended and Restated Loan and
Security Agreement, dated as of May 22, 2000, among HWC Wire & Cable Company
(formerly known as Houston Wire & Cable Company) (“Borrower”), the lenders
named therein (“Lenders”) and Bank of America, N.A. (“Bank of America”) as
successor-in-interest to Fleet Capital Corporation, as agent for said Lenders
(Bank of America, in such capacity, “Agent”). Said Amended and
Restated Loan and Security Agreement, as amended by a certain First Amendment
to
Amended and Restated Loan and Security Agreement by and among Borrower, Lenders
and Agent dated as of July 13, 2000, by a certain Second Amendment to Amended
and Restated Loan and Security Agreement by and among Borrower, Lenders and
Agent dated May 30, 2001, by a certain Third Amendment to Amended and
Restated Loan and Security Agreement by and among Borrower, Lenders and Agent
dated October 22, 2001, by a certain Fourth Amendment to Amended and
Restated Loan and Security Agreement by and among Borrower, Lenders and Agent
dated December 31, 2002, by a certain Fifth Amendment to Amended and Restated
Loan and Security Agreement by and among Borrower, Lenders and Agent dated
November 19, 2003, by a certain Sixth Amended to Amended and Restated Loan
and
Security Agreement dated as of May 26, 2005 by and among Borrower, Lenders
and
Agent, by a certain Seventh Amendment to Amended and Restated Loan and Security
Agreement dated December 14, 2005 by and among Borrower, Agent and Lenders,
by a
certain Eighth Amendment to Amended and Restated Loan and Security Agreement
dated December 30, 2005 by and among Borrower, Agent and Lenders, by a certain
Ninth Amendment to Amended and Restated Loan and Security Agreement dated May
23, 2006 by and among Borrower, Agent and Lenders and by a certain Tenth
Amendment to Amended and Restated Loan and Security Agreement dated as of
November 3, 2006 by and among Borrower, Agent and Lenders and as it may be
further amended, is hereinafter referred to as the “Loan
Agreement.” The terms used herein and not otherwise defined shall
have the meanings attributed to them in the Loan
Agreement. References to Agent and/or any Lender shall include
Agent’s or such Lender’s predecessor(s)-in-interest.
WHEREAS,
Lenders, Agent and Borrower desire to make certain amendments and modifications
to the Loan Agreement.
NOW
THEREFORE, in consideration of the premises and the mutual covenants hereinafter
contained and contained in the Loan Agreement, the parties hereto hereby agree
as follows:
1.
Additional Definitions. The following definitions of
“Eleventh Amendment” and “Eleventh Amendment Effective Date” are hereby inserted
into Exhibit A to the Loan Agreement. The definition of “Fixed
Charges” contained in Exhibit Q to the Loan Agreement is hereby deleted
and the following is inserted in its stead:
* * *
“Fixed
Charges– for any period of determination, the sum of (a) scheduled principal
payments on Indebtedness for Money Borrowed (including the principal portion
of
scheduled payments of Capital Lease Obligations), (b) Interest Expense included
in the determination of Consolidated Net Income, but excluding any interest
paid
in kind, with respect to Indebtedness for Money Borrowed and (c) Distributions
paid in cash within such period.
1
* * *
Eleventh
Amendment– that certain Eleventh Amendment to Amended and Restated Loan and
Security Agreement dated as of July 31, 2007 by and among Borrower, Agent and
Lenders.
* * *
Eleventh
Amendment Effective Date– the date on which the conditions precedent to the
effectiveness of the Eleventh Amendment are satisfied.”
2.
Distribution. Subsection 8.2.7 of the Loan Agreement is hereby
deleted and the following is inserted in its stead:
“8.2.7 Distributions. Declare
or make, or permit any Subsidiary of Borrower to declare or make, any
Distributions, except that:
(a) Subsidiaries
of Borrower may make Distributions to Borrower with respect to their common
Stock;
(b) Borrower
may pay dividends to Guarantor in an amount sufficient to maintain the corporate
existence of Guarantor, to pay income taxes and to pay the reasonable
out-of-pocket expenses of Guarantor and audit fees and expenses, not to exceed
$100,000 per annum in the aggregate;
(c) Borrower
may pay dividends to Guarantor for further distribution to its stockholders
in
an amount not to exceed the lesser of (x) income taxes on phantom income
incurred on the issuance of payment-in-kind notes with respect to the Guarantor
Subordinated Debt or (y) $125,000 per year;
(d) Borrower
may pay dividends to Guarantor of up to $100,000 in each Fiscal Year to
repurchase the capital stock of employees who die or terminate their employment
with Borrower; and
(e) Borrower
may make Distributions to Guarantor to permit Guarantor to pay dividends on,
or
make repurchases of, Guarantor’s common Stock so long as after giving effect to
any such Distribution, (i) no Event of Default shall have occurred and is
continuing, (ii) the aggregate amount of all such Distributions made within
the
most recently ended twelve month period plus the amount of the proposed
Distribution does not exceed fifty percent (50%) of Borrower’s Consolidated Net
Income for the most recently ended twelve month period, and (iii) if at any
time
within the 90 days immediately prior to the date of such Distribution or after
giving effect to such Distribution, Availability was or will be less than
$10,000,000, Borrower’s Fixed Charge Coverage Ratio for the most recently ended
twelve month period, computed on a pro forma basis on the assumption that the
proposed Distribution was made within such twelve month period, equaled or
exceeded 1.10 to 1.”
2
3.
Financial Covenant. Exhibit O to the Loan Agreement is
hereby deleted and Exhibit O attached to this Eleventh Amendment is
hereby inserted in its stead. The financial covenant contained in
Exhibit Q to the Loan Agreement is hereby deleted and the following is
inserted in its stead:
“EXHIBIT
Q
FINANCIAL
COVENANTS
* * *
COVENANT
Fixed
Charge Coverage Ratio- If Availability at any time within the most recently
ended 90 day period is less than Ten Million Dollars ($10,000,000), Borrower
shall not permit the Fixed Charge Coverage Ratio for the most recently ended
twelve month period ending on a March 31, June 30, September 30 or December
31
to be less than 1.10 to 1.”
4.
Conditions Precedent. This Eleventh Amendment shall become
effective upon receipt by Agent of a copy of this Eleventh Amendment, duly
executed by Borrower, Guarantor, Agent and each Lender.
5.
Continuing Effect. Except as otherwise specifically set out
herein, the provisions of the Loan Agreement shall remain in full force and
effect.
6.
Governing Law. This Eleventh Amendment and the obligations
arising hereunder shall be governed by, and construed and enforced in accordance
with, the laws of the State of Illinois applicable to contracts made and
performed in such state, without regard to the principles thereof regarding
conflict of laws.
7.
Counterparts. This Eleventh Amendment may be executed in
any number of separate counterparts, each of which shall, collectively and
separately, constitute one agreement.
(Signature
Page Follows)
3
(Signature
Page to Eleventh Amendment to Amended and Restated
Loan
and Security Agreement)
IN
WITNESS WHEREOF, this Eleventh Amendment has been duly executed as of the first
day written above.
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HWC
WIRE & CABLE COMPANY,
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HOUSTON
WIRE & CABLE COMPANY,
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as
Borrower
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as
Guarantor
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By:
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/s/
Xxxxx X. Xxxxxx
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By:
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/s/
Xxxxxxx Xxxxxxxxxx
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Name:
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Xxxxx
X. Xxxxxx
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Name:
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Xxxxxxx
Xxxxxxxxxx
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Title:
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VP
& CFO
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Title:
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President
& CEO
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THE
CIT GROUP/BUSINESS CREDIT, INC.,
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BANK
OF AMERICA, N.A.,
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as
a Lender
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as
Agent and a Lender
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By:
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/s/
Xxxx Xxxxxx
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By:
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/s/
Xxxxx X. Xxxxxx
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Name:
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Xxxx
Xxxxxx
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Name:
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Xxxxx
X. Xxxxxx
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Title:
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Vice
President
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Title:
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Senior
Vice President
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EXHIBIT
O
COMPLIANCE
CERTIFICATE
[Letterhead
of Borrower]
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__________,
200_
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The
undersigned, the chief financial officer of HWC Wire & Cable Company, a
Delaware corporation (“Borrower”), gives this certificate to Bank of America,
N.A. in accordance with the requirements of Section 8.1.2 of that certain
Loan and Security Agreement dated May 22, 2000, among Borrower, the lender
signatories thereto (“Lenders”) and Bank of America, N.A. (“Bank of America”), a
national banking association, as successor-in-interest to Fleet Capital
Corporation, as agent for such Lenders (Bank of America, in such capacity,
“Agent”). Capitalized terms used in this Certificate, unless
otherwise defined herein, shall have the meanings ascribed to them in the Loan
Agreement.
1.
Based upon my review of the balance sheets and statements of income of Borrower
for the [fiscal year] [monthly
period] ending __________, 200_, copies of which are attached
hereto, I hereby certify that:
(a) Availability
for each day of the 30 day period ending __________ was [never]
less than $10,000,000;
(b) Fixed
Charge Coverage Ratio for the period between ___________ and _________ is______
to 1 (if applicable);
(c) Capital
Expenditures during the period and for the fiscal year to date total $__________
and $__________, respectively.
2.
No Default exists on the date hereof, other
than: __________________________________________________________
[if none, so state]; and
3.
No Event of Default exists on the date hereof, other than
________________________________________________________ [if
none, so state].
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Very
truly yours,
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Chief
Financial Officer
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O-1
