EXHIBIT 10.2
FIRST AMENDMENT TO
CREDIT AGREEMENT
AND WAIVER
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER dated as of September
30, 2004 (the "Amendment") relating to the Credit Agreement referenced below, is
by and among XXXXXXX CABLE, INC., a Delaware corporation (the "Company"),
certain Subsidiaries of the Company identified on the signature pages hereto as
a Borrower (collectively referred to as the "Subsidiary Borrowers" or
individually referred to as a "Subsidiary Borrower") (hereinafter, the Company
and the Subsidiary Borrowers collectively referred to as the "Borrowers" or
individually referred to as a "Borrower"), each of the financial institutions
identified as Lenders on the signature pages hereto (referred to individually as
a "Lender" and, collectively, as the "Lenders"), and WACHOVIA BANK, NATIONAL
ASSOCIATION ("Wachovia"), as administrative agent (in such capacity, the
"Administrative Agent" or the "Agent").
WITNESSETH
WHEREAS, a $75,000,000 credit facility has been extended to the Borrowers
pursuant to the terms of that certain Credit Agreement dated as of September 28,
2004 (as amended, modified or otherwise supplemented from time to time, the
"Credit Agreement") among the parties identified in the introductory paragraph
above;
WHEREAS, as an inducement to close the Credit Agreement, the Credit
Parties provided a Post Closing Agreement dated September 28, 2004 (the "Post
Closing Agreement") to the Administrative Agent, pursuant to which the Credit
Parties agreed to deliver or cause to be delivered to the Administrative Agent
leasehold mortgages on each leasehold property listed on Schedule 6.19 to the
Credit Agreement within 60 days after the Closing Date (the "Post Closing
Requirement");
WHEREAS, the Company has requested that the Administrative Agent waive the
Post Closing Requirement for the leasehold property of the Credit Parties
located in Oswego, New York (the "Oswego Property"); and
WHEREAS, the Administrative Agent has agreed to provide such waiver, and
the parties hereto have agreed to amend the Credit Agreement, on the terms and
conditions provided herein.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
PART 1
DEFINITIONS
SUBPART 1.1 Certain Definitions. The following terms used in this
Amendment, including its preamble and recitals, have the following meanings:
"Amended Credit Agreement" means the Credit Agreement, as amended
hereby and as further amended, supplemented or otherwise modified from
time to time.
"First Amendment Date" is defined in Subpart 4.1.
SUBPART 1.2 Other Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment, including its preamble
and recitals, have the meanings provided in the Amended Credit Agreement.
PART 2
AMENDMENTS TO CREDIT AGREEMENT
SUBPART 2.1 Amendment to Section 5.2. Section 5.2(a)(iii) of the Credit
Agreement is hereby deleted in its entirety.
SUBPART 2.2 Amendment to Section 6.6. Section 6.6(b) of the Credit
Agreement is hereby deleted in its entirety.
SUBPART 2.3 Amendment to Section 7.5. Section 7.5 of the Credit Agreement
is hereby deleted in its entirety and replaced with the following:
7.5 PROCEEDINGS OR ADVERSE CHANGES.
The Credit Parties will as soon as possible, and in any event
within five (5) Business Days after any Credit Party learns of the
following, give written notice to the Agent of any proceeding(s) being
instituted or threatened to be instituted by or against any Credit Party
or any of its Subsidiaries in any federal, state, local or foreign court
or before any commission or other regulatory body (federal, state, local
or foreign) that, if adversely determined, could reasonably be expected to
have a Material Adverse Effect. Provision of such notice by the Credit
Parties will not constitute a waiver or excuse of any Default or Event of
Default occurring as a result of such changes or events.
PART 3
WAIVER
SUBPART 3.1 Notwithstanding the provisions of the Post Closing Agreement,
the Administrative Agent and the Lenders hereby waive the Post Closing
Requirement for the Oswego Property; provided, that upon the acquisition of a
fee interest in the Oswego Property by any Credit Party, such Credit Party shall
comply with the provisions of Section 7.9 of the Credit Agreement with respect
to the Oswego Property.
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PART 4
CONDITIONS TO EFFECTIVENESS
SUBPART 4.1 First Amendment Date. This Amendment shall be and become
effective as of the date hereof (the "First Amendment Date") when all of the
conditions set forth in this Part 4 shall have been satisfied, and thereafter
this Amendment shall be known, and may be referred to, as the "First Amendment".
SUBPART 4.2 Execution of Counterparts of Amendment. The Administrative
Agent shall have received counterparts (or other evidence of execution,
including telephonic message, satisfactory to the Administrative Agent) of this
Amendment, which collectively shall have been duly executed on behalf of each of
the parties hereto.
SUBPART 4. 3 Other. The Administrative Agent shall have received such
other documents, agreements or information which may be reasonably requested by
the Administrative Agent relating to the existence of the Credit Parties, the
corporate authority for and the validity of this Amendment and the transactions
contemplated hereby, and any other matters relevant hereto, all in form and
substance satisfactory to the Administrative Agent in its sole good faith
discretion.
PART 5
MISCELLANEOUS
SUBPART 5.1 Representations and Warranties. Each of the Borrowers hereby
represents and warrants that (i) the representations and warranties contained in
Article VI of the Amended Credit Agreement are true and correct on and as of the
date hereof as though made on and as of the date hereof (except for those
representations and warranties which by their terms relate solely to an earlier
date) and after giving effect to the amendments contained herein, (ii) no
Default or Event of Default exists under the Credit Agreement or the Amended
Credit Agreement on and as of the date hereof and after giving effect to the
amendments contained herein, (iii) it has the corporate power and authority to
execute and deliver this Amendment and each of the documents executed and
delivered in connection herewith and to perform its obligations hereunder and
has taken all necessary corporate action to authorize the execution, delivery
and performance by it of this Amendment and each of the documents executed and
delivered in connection herewith and (iv) it has duly executed and delivered
this Amendment and each of the documents executed and delivered in connection
herewith, and this Amendment and each of the documents executed and delivered in
connection herewith constitutes its legal, valid and binding obligation
enforceable in accordance with its terms except as the enforceability thereof
may be limited by bankruptcy, insolvency or other similar laws affecting the
rights of creditors generally or by general principles of equity.
SUBPART 5.2 Cross-References. References in this Amendment to any Part or
Subpart are, unless otherwise specified, to such Part or Subpart of this
Amendment.
SUBPART 5.3 Instrument Pursuant to Credit Agreement. This Amendment is a
Credit Document executed pursuant to the Credit Agreement and shall (unless
otherwise
FIRST AMENDMENT
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expressly indicated therein) be construed, administered and applied in
accordance with the terms and provisions of the Amended Credit Agreement.
SUBPART 5.4 References in Other Credit Documents. At such time as this
Amendment shall become effective pursuant to the terms of Subpart 4.1, all
references in the Credit Documents to the "Credit Agreement" shall be deemed to
refer to the Amended Credit Agreement.
SUBPART 5.5 Counterparts/Telecopy. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement. Delivery of executed counterparts of the Amendment by telecopy shall
be effective as an original and shall constitute a representation that an
original shall be delivered.
SUBPART 5.6 Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAW.
SUBPART 5.7 Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
SUBPART 5.8 Continuing Agreements. Except as specifically modified hereby,
all of the terms and provisions of the Credit Agreement and the other Credit
Documents (and Exhibits and Schedules thereto) shall remain in full force and
effect, without modification or limitation, and this Amendment shall not affect,
modify or diminish the obligations of the Credit Parties which have accrued
prior to the effectiveness of the provisions hereof. This Amendment shall not
operate as a consent to any other action or inaction by any Credit Party, or as
a waiver or amendment of any right, power, or remedy of any Lender or the
Administrative Agent under the Credit Documents nor constitute a consent to any
such action or inaction, or a waiver or amendment of any provision contained in
any Credit Document except as specifically provided herein.
SUBPART 5.9 Payment of Fees and Expenses. Each of the Borrowers agrees,
jointly and severally, to pay all costs and expenses of the Administrative Agent
in connection with the preparation, execution and delivery of this Amendment,
including, without limitation, the reasonable fees and expenses of Xxxxx & Xxx
Xxxxx, PLLC.
SUBPART 5.10 Approval by Lenders. Each Lender, by delivering its signature
page to this Amendment on the First Amendment Date, shall be deemed to have
acknowledged receipt of, and consented to and approved, the Amendment, the
Amended Credit Agreement, each other Credit Document and each other document
required to be approved by any Agent, the Required Lenders or the Lenders, as
applicable, on the First Amendment Date.
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FIRST AMENDMENT
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first above
written.
BORROWERS: XXXXXXX CABLE, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive VP & CFO
OSWEGO WIRE INCORPORATED.,
a Texas corporation
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive VP & CFO
CCI ENTERPRISES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive VP & CFO
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AGENT AND LENDERS WACHOVIA BANK,
NATIONAL ASSOCIATION,
as Administrative Agent and as a Lender
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
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NATIONAL CITY BUSINESS CREDIT, INC.,
as Syndication Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
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ING CAPITAL LLC,
as Syndication Agent and as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxxx
Title: Managing Director
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PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent and as a Lender
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
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ASSOCIATED BANK,
NATIONAL ASSOCIATION,
as Documentation Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
FIRST AMENDMENT
CONSENT OF GUARANTORS
Each of the undersigned (collectively the "Guarantors" and each a
"Guarantor"), does hereby acknowledge receipt of a copy of the foregoing
Amendment, dated as of the same date hereof, and, in connection therewith,
hereby consents to the execution, delivery and performance thereof and agrees
that nothing contained therein nor in any document, instrument or other
agreement required or contemplated thereby, shall alter, discharge, release,
cancel or impair the duties and obligations of such Guarantor under the Guaranty
Agreement and that the Guaranty Agreement shall continue to remain in full force
and effect, enforceable against such Guarantor in accordance with its terms,
without any right of offset, deduction, defense or counterclaim in favor of such
Guarantor against the Administrative Agent or the Lenders.
IN WITNESS WHEREOF, each of the Guarantors has executed this Consent under
seal as of September 30, 2004.
GUARANTORS: BARON WIRE & CABLE CORP.,
an Illinois corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive VP & CFO
THE DEKALB WORKS COMPANY,
an Illinois corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive VP & CFO
CCI INTERNATIONAL, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive VP & CFO
LAKESIDE DRIVE ASSOCIATES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive VP & CFO
FIRST AMENDMENT
